The plaintiff claimed the goods by virtue of a prior mortgage of them by Tingley to him. The mortgage given to secure the payment of notes purported to include not only the goods then in his store, but such as he might afterwards purchase. After the notes became due, the plaintiff claimed the right to take possession. This, at first, was resisted by Tingley, the debtor, on another ground, to wit, that he could not take possession of the goods, without at the same time surrendering his notes. This point having been yielded by Tingley, there is evidence to show, that by an arrangement made between the plaintiff and Tingley, the plaintiff took pos ■ session of all the goods, as well those after purchased, as those existing at the time of the mortgage, under an agreement *336that he should sell the same, pay his own notes out of the proceeds, and account to Tingley for the surplus. The judge, who tried the case, instructed the jury, that though the parties did not actually contemplate any thing more than to perfect a supposed valid title under the mortgage, yet if they intended that the plaintiff should hold the goods for the security of his debt, his title to them would enure by way of pledge, for the purpose of effectuating such intention, and that the plaintiff would be entitled to recover the value, if the proceeding was bona fide, and not fraudulent. The question of fraudulent intent was rightly left to the jury, and was negatived by them.
Now, supposing the original mortgage was invalid to bind after purchased goods, (Jones v. Richardson, 10 Met. 481,) yet we are of opinion that the above direction was right.
This agreement and the delivery of the goods to the plaintiff took place before the attachment was made in behalf of a creditor, after Tingley had purchased and received the goods, and had a full disposing power over them. The facts show all the elements of a new, distinct and substantive agreement to hypothecate the after acquired goods, sufficient of itself to give title to the plaintiff. There was title and possession in Tingley, an agreement that the goods should go into the possession of the plaintiff, to be sold, and the proceeds applied to the payment of his debt, and the plaintiff to account to him, and pay over the surplus, if any; and this was followed by an actual delivery, before the attachment. The fact, that the parties acted under a mistaken belief that the plaintiff had a good title to these goods, under the mortgage, does not invalidate another good title, of itself sufficient. Such is commonly the case, when an act is held to operate as a ratification or confirmation of some proceeding, doubtful, voidable or void. If the act, to which it is applied, is voidable only, then it enures by way of ratification ; if actually void, and the subsequent act is of itself sufficient, it enures as an original act.
It was argued, that if the latter transaction was available at *337all, it must be by way of pledge, and not as a mortgage. But if, as the evidence of the terms of the agreement tends to show, it was accompanied with an express power of sale, it becomes unnecessary to consider, with critical exactness, whether it operated in law as a pledge or a mortgage. In either case, the plaintiff would have a right to hold the goods against the attaching creditor of the mortgagor; and such attachment was a conversion.
Judgment on the verdict for the plaintiff.