This order was not a conveyance or transfer of the mortgaged property to Fuller; it was merely an authority to the mortgagee to sell within six months, and pay to Fuller the surplus remaining after the satisfaction of the mortgagee’s own debt. The mortgagee, not being in possession, had no interest in the property beyond that created by the mortgage, and subject to its terms and conditions; and after the discharge of the liability so created, he could have none in that specific property, which would enable him to satisfy the order by a sale. The order was provisional; to pay when the goods were sold; and, until such sale, it only gave an authority to make it, and passed no interest in anything. Before it was exercised, the mortgagors became insolvent; it was revoked by the assignment, and Emerson then took in another character, namely, as assignee, for the benefit of all the creditors. The order could not operate as a pledge or *207mortgage, because it was not put on record, nor followed by any transmutation of possession. There was only a naked authority to sell.
It is urged that the acceptance created a personal obligation to pay money which may be recovered in this form of action ; but that obligation was conditional, and the condition never occurred. Although Emerson had a right to sell at any time, be was not bound to do so; and even if we were to hold that he undertook to do so at some time within six months, his power was taken away by the proceedings in insolvency, and there could be no “ sales,” out of which alone he was bound to pay.
Some reliance was placed upon the fact, that the mortgage was given to secure liabilities arising from the renewal or change of those formerly existing. But the acceptance of this order did not secure such liabilities. And supposing the order was given to secure future liabilities in general, Emerson assumed no responsibility for Knights & Jones, by his acceptance. It was a conditional undertaking, and not within the mortgage. The condition not having arisen, there is no obligation upon him nor upon the surplus in his hands, which he must therefore hold for his general creditors.
Judgment for the defendant.