[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 61 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 63 An action to recover damages for the conversion of chattels is a strictly legal one which cannot be maintained unless the plaintiff is entitled to the immediate possession of the property, if in existence. Except as provided by statute possession by the lienor of chattels on which the lien is claimed is indispensable to support a common-law lien. One having such a lien can maintain trover if the property is wrongfully taken or withheld from his possession, but such an action will not lie to enforce an equitable lien as against the owner of the legal title who remains in possession of the property and has not contracted it to the lienor. The instrument under which the plaintiff claims to recover is in form a chattel mortgage. Gandolfo, who executed it, assumes to transfer the legal title to the machinery to Robert Deeley, the plaintiff's assignor, subject to be defeated upon the payment *Page 64 of $4,700. But the machinery, not having been then manufactured, Gandolfo had no title to it (Andrews v. Durant, 11 N.Y. 35;Comfort v. Kiersted, 26 Barb. 472), and the instrument did not vest the legal title of the machinery in Deeley, nor did it create a legal lien upon the property described therein. (Gardner v. McEwin, 19 N.Y. 123; Jones v. Richardson, 10 Met. 481; Pettis v. Kellogg, 7 Cush. 456; Otis v. Sill, 8 Barb. 102; Conderman v. Smith, 41 id. 404; Thomas Chat. Mort. § 137; Jones Chat. Mort. § 138.)
We find no case which holds that the legal title to property not in existence actually or potentially can be transferred either by way of sale or mortgage. That an equitable lien may be created on property to be brought into existence is well settled, and an action to foreclose the lien may be maintained. It was said in Coats v. Donnell (94 N.Y. 177), "A contract for a lien on property not in esse may be effectual in equity to give a lien as between the parties, when the property comes into existence, and where there are no intervening rights of creditors or third persons, seems to be established by several decisions in this court." Kribbs v. Alford (120 N.Y. 519), which is relied on by the respondent, is not in conflict but in harmony with these views. It was there said "invalidity at law imports nothing more than that a mortgage of property thereafter to be acquired is ineffectual as a grant to pass the legal title. A court of equity, in giving effect to such a provision, does not put itself in conflict with that principle. It does not hold that a conveyance of that which does not exist operates as a present transfer in equity any more than it does in law. But it construes the instrument as operating by way of present contract to give a lien, which, as between the parties, takes effect and attaches to the subject of it as soon as it comes into the ownership of the party. Such we deem the rule to be in equity in this state." (McCaffrey v. Woodin, 65 N.Y. 459; Wisner v. Ocumpaugh, 71 id. 113; Coats v. Donnell, 94 id. 168, 177; Hale v.Omaha Nat. Bank, 49 id. 626, 632.)
It follows from these views that plaintiffs failed to establish *Page 65 a legal title, either as general or special owners, and were not entitled to recover.
The order should be reversed and the judgment entered on the verdict, affirmed, with costs.
All concur.
Order reversed and judgment accordingly.