delivered the opinion of the Court. Many questions of considerable difficulty as to the admission and rejection of evidence, and especially as to the admission of secondary evidence, were discussed on this report; but the short and decisive view taken by the Court upon one branch of the case, renders them immaterial.
This is rather an old transaction, the defendants have been in the actual and undisputed possession of the machinery, which is the subject of controversy in this suit, for several ¿ears, and it is incumbent upon the plaintiff to prove a strict egal title, before he can recoi er.
The plaintiffs claim under a mortgage of this personal property, which, at the time when the mortgage was made, was in the actual occupation, possession and use of the Uphams, by Clark to Anderson, to secure the payment of a certain sum uf money, and under an assignment on the same day, from Anderson to the plaintiffs. This mortgage from Clark to Anderson being made by Clark after he had transferred and delivered possession to the Uphams, could not avail to pass any interest .to Anderson, unless made in pursuance of some power or *93authority for that purpose, given by the Uphams to Clark, or reserved upon the transfer of Clark to the Uphams. This authority is supposed to be found in the paper marked C, being a copy of a paper signed by Messrs. Upham and placed in the hands of Dunbar, and subsequently given up by Dunbar to the signers, under a belief, that it had become inoperative, and that they were entitled to have it delivered up. I shall not stop to inquire whether, under the circumstances, this copy was competent evidence, because it is immaterial. It was left to the jury to consider whether it was delivered to Dunbar, unconditionally, and the jury have found that it was. It bears date December 30, 1828, and recites that Anderson has transferred a quantity of machinery, finished and unfinished, and stock for machinery, to Clark, that Clark has transferred the same to the Uphams, that Clark is indebted to Anderson in a sum, to be ascertained by appraisal, agreeable to a submission entered into between Clark and Anderson, in consideration whereof, the Uphams agree that Anderson, after the machinery is put in operation, shall have a lien by mortgage or otherwise, as collateral security, for whatever sum shall be due him on settlement, said mortgage or lien to run five years. It further appears that Anderson and Clark had then entered into a submission to Dunbar and two others, to determine what proportion of the original contract price Clark should pay Anderson for the machinery as far as completed, and how much, upon that principle, remained due to him.
It further appears, that the referees never did make any appraisal or award, pursuant to the submission, determining how much was due from Clark to Anderson on the principle of settlement agreed upon by the submission.
Now upon the construction of this paper, supposing it to be well proved and to have been unconditionally delivered, the Court are of opinion, that it did not authorize Clark to make a mortgage upon the property to Anderson, to secure to him payment of a sum of money found due from Clark to Anderson upon a private settlement, made by them ; but that it was an executory agreement made by the Messrs. Upham with Anderson, placed in the hands of the chairman of the referees, "or the benefit of Anderson, stipulating that when the referees *94had determined what sum was due from Clark to Anderson on account of the machinery, the Uphams would, by mortgage or otherwise, give to him a lien on the machinery, for the sum thus ‘bund due. The provision, “ whatever sum shall be due him on settlement,” in this agreement, taken in connexion with the recital, that it had been submitted to referees to determine what was due, and taken in connexion with the fact, that the paper was delivered to the chairman of the referees, and not to Anderson himself, must be understood to mean, a “settlement” made by the referees. Any other construction would subject them to an indefinite and unlimited responsibility, and would not be consistent with the intent of the parties to the agreement. It was therefore in legal effect, an executory stipulation to secure by a mortgage to be made on the machinery, such balance due for the machinery itself, as the referees should determine to be due. The making of the award, therefore, was a condition precedent to tire liability of the Uphams to make such a mortgage. No such award having ever been made, the condition, upon which alone they were bound, did not happen, and they therefore never became bound to make such mortgage.
But had it been otherwise, had the referees found a balance due, the agreement in question did not authorize Clark, without the concurrence of the Uphams, to make' a mortgage to Anderson, on this machinery, for such balance, and therefore the act of Clark in this respect was unauthorized and passed no interest or title in the property to Anderson, and consequently his assignment passed no title to the plaintiffs.
The Court are therefore of opinion, that the plaintiffs are sot entitled to recover.