Pettis v. Kellogg

Dewey, J.

The title of the plaintiff is that of mortgagee, by virtue of a mortgage from Phineas Pettis, bearing date December 24th, 1849, which mortgage was duly recorded on the same day. Is this mortgage a valid one, and effectual to pass the property to the plaintiff in the articles now in controversy 1

1. It is objected to the validity of this mortgage that the articles are not sufficiently described in the mortgage. As to the objection arising from the generality of the description, “ all the staves I had of Moses Fargo,” it has often been a subject of consideration by this court, and is now the well settled doctrine, that it is no sufficient objection that the articles are thus generally described. Winslow v. Merchants Ins. Co. 4 Met. 306 ; Harding v. Coburn 12 Met. 333. The further objection, that this mortgage must be confined to the staves of the plaintiff that were then in the town of Monterey, and that it can not be held to embrace those that were in the adjoining town of Sandisfield, though near the dividing line between that town and Monterey, is one of more difficulty, and to be met only by taking the rule of construction often applied to conveyances of real estate, namely, that of rejecting a particular description which is clearly false, in order to give effect to other descriptive words, which of themselves sufficiently describe the object intended to be conveyed. The entire description is this: “All the staves I have in Monterey, the same I had of Moses Fargo.” Now it is agreed that the mortgagor had no staves in Monterey, but the staves he had of Moses Fargo were in the adjoining town of Sandisfield. If we reject this false recital as to Monterey, we have yet left a full and sufficient description of the articles, namely, “ all the staves I had of Moses Fargo.” True, you must go out of the description and show by other facts, which were the staves that the mortgagor purchased of Moses Fargo ; and this would have been equally necessary, had the whole description been correct and truly recited. It seems to us, that this is one of those cases, where the property may be held sufficiently described after rejecting the false recital, and one where, upon sound principles, such false recital may be rejected, to give effect to the contract.

2. The objection taken at the trial that the mortgage was invalid, because the condition was impossible, it being to pay a promissory note, “ according to its tenor,” when the note was payable at a day certain, which bad already past, is not farther urged. It could not avail; as the obvious purpose of the parties was to secure the payment of the note thus de< scribed, which, on its face, was a note overdue; and the condition of the mortgage must be understood to have been the payment of the note in its then state, which was virtually the same as a note payable on demand.

3. It is then further objected that, at the time of the execution of the mortgage, the mortgagor was not the owner of the property attempted to be conveyed in mortgage, and that his interesttherein afterwards acquired cannot avail the mortgagee, so as to enable him to hold the same under the mortgage. This subject has recently been fully considered by this court, and the result stated in the opinion of the court, in the case of Jones v. Richardson, 10 Met. 481, where it was held, that a mortgage of goods, which the mortgagor does not own when the mortgage is made, though he afterwards acquire them, is void as against his attaching creditors. The further inquiry, upon this point, is as to the facts to which this legal principle is now sought to be applied. These are stated in the testi ■ mony of Moses Fargo, from which it appears, that the property now in controversy had not been delivered to the mortgagor at the date of the mortgage; that it was parcel of a quantity of staves that he had contracted to sell and deliver to the mortgagor; but that when delivered, the vendee was to give him good security therefor. Some portion of the staves, not now the subject of controversy and not attached, had been delivered to the vendee. In this state of things, the mortgage, was made. There had not been, in the opinion of the court, at this time, a transfer of the property. It was only an executory contract between Fargo and the mortgagor, as to the staves; the property in Pettis being dependent upon the delivery yet to be made by Fargo, and upon the condition of payment or security for the same, to be made by the vendee. Until this took place, the property was in Fargo. The question of property in these articles may be tested, by supposing a creditor of Phineas Pettis to have attached the same as his property, while in Sandisfield, and yet undelivered to Pettis. Could not Fargo have asserted a paramount claim to this property? Most clearly he might. We do not perceive, that the d( li very, after the execution of the mortgage, and the giving of satisfactory security for the payment of the articles, can operate retrospectively, and give effect to a mortgage previously executed. The acquisition of title, by the delivery and pay ment, or giving security, presents no stronger case than any other subsequent purchase of articles described in the mortgage, but not then owned by the mortgagor, which in the case just cited was held insufficient. It would have been competent for the parties, by a new delivery and pledge after the articles became the property of Phineas Pettis, to have given Benjamin W. Pettis a valid lien upon them as security for the same debt as that described in the mortgage; but in such case the party would hold under the lien. It was said in the argument, that such was the case here, but that does not appear in the bill of exceptions. It will be fully open to the defendants on a new trial.

4. We perceive no valid objection to the form of the notice given by the mortgagee to the attaching officer. That the plaintiff claimed also, in his notice, that he had a lien by a pledge as well as a mortgage, did not vitiate the notice.

But the ruling, that the property was sufficiently vested in the mortgagor to authorize him to convey the same in mortgage, upon the facts stated in the report of the case, was erroneous, and to that extent the Exceptions are sustained.