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
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<
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
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.