The opinion of the court was delivered by
Kellogg, J.Upon the bill of exceptions two questions are raised for consideration.
1. It is insisted, that, in order to entitle the plaintiff to recover in this suit, he must have had either the actual or constructive possession of the property, at the time it was taken by the defendant: This principle is well settled and seems not to be controverted by the plaintiff. He, however, insists, that he was the owner of the property at the time of the attachment and was entitled to immediate possession, and that consequently he was constructively in possession of the property in question. This proposition rests for its support upon the mortgage deed, from which the plaintiff derives his title. The contract evidently contemplates, that the mortgagor should retain possession of the property, until there should be a failure on his part to make the payments stipulated in the deed. It, however, contains a provision, “ that if the mortgagee should at any time deem himself in danger of losing his debt by delaying the collection of it until the expiration of the time limited for the payment, he was authorized to take possession of the property; ” and upon this clause the plaintiff relies, to establish his right to immediate possession. To this it is objected, that the right to possession is made to depend upon a contingency, until the happening of which, followed by some act of the mortgagee, asserting the right, the right to possession does not attach. And this objection, we think, is sustained by repeated adjudications in this court. We do not see, how it is to be distinguished, in principle, from the case of Soper v. Sumner, 5 Vt. 274. Nor could the mortgagee be justified in taking immediate possession of the property mortgaged, unless he had reasonable apprehension of loss by delay. Batchelder v. Warren, 19 Vt. 371. Soper v. Sumner, 5 Vt. 274.
*284But it does not appear, that the plaintiff ever undertook, or ever manifested an intention, to take possession of the property prior to the attachment by the defendant. We do not see, then, how the plaintiff can be said to have been in either the actual or constructive possession of the property, at the time of the alleged trespass, and consequently, we think, the facts do not enable the plaintiff to maintain this suit.
2. It is urged by the plaintiff, that, by virtue of the mortgage, he acquired a lien upon the property, which, by the laws of New York, was valid without a change of possession; and, being valid there, he insists, that it is sufficient to defeat the defendant’s attachment, made in this state. The validity of the plaintiff’s lien, by the laws of New York, is conceded, and, as between the parties to the mortgage, it may be admitted to be valid and binding, wherever the property may be found. “ Although the law does not, by its own force, operate in any other country but that which established it, and the judicial tribunals of another country are not hound to recognize it; yet states, from comity and considerations of mutual interest, recognize and give effect to the laws of each other, when the rights either of their own subjects or of foreigners are derived from or are dependent on those laws. But such recognition does not take place by any foreign state, when it would be incompatible with its own authority, or prejudicial to the interests of its own subjects.”
Admitting the validity of the mortgage in New York, it by no means follows, that it is to be received and recognized here, to defeat attachments made by our own citizens. This is not required by the comity of states. In the case at bar, the mortgagee permits the property to remain in the possession of the mortgagor, who takes it into another jurisdiction, by the laws of which the property becomes subject to attachment by the creditors of the mortgagor, and it is there attached; yet he claims, that his lien, created by the mortgage, in a foreign jurisdiction, will take precedence of and defeat the lien created by the attachment. Such is, in substance, the claim urged by the plaintiff; but we think it is not sustained by the current of authorities. Ingraham v. Geyer, 13 Mass. 146. Potter v. Brown, 5 East 124.
As between these parties, the case presents simply a question of conflicting liens. The property in question, when brought here, *285became subject to our laws and liable to attachment by the creditors of the mortgagor. The defendant was not a party to the contract, under which the plaintiff claims to hold the property. As between the parties claiming by virtue of these conflicting liens, it seems to us, that the one created under our law should be sustained by the tribunals of this state. Story’s Confl. of Laws, sec. 323-326.
Though the plaintiff’s lien, by the laws of New York, be valid, yet we apprehend, it will hardly be pretended, that such a mortgage, made here and unaccompanied by a change of possession of the chattels, would create a valid lien, as against attaching creditors of the mortgagor. Such a doctrine is at variance with the well established rule in this state, that, to constitute a valid sale of chattels as against the creditors of the vendor, there must be an open, visible change of possession.
We are not aware, that the precise question 'here presented has ever been decided by this court. The case of Woodward v. Gates, 9 Vt. 358, involved an inquiry into the validity of a chattel mortgage, executed in New Hampshire; but the court decided the case upon the ground, that the statute of New Hampshire, regulating mortgages of personal property, had not, in that case, been complied with. The late Chief Justice Williams, however, in delivering the opinion of the court, says, “The only remaining question is, whether the statute of New Hampshire protects the property of the plaintiff against the attachment of the defendants. If the statute had been complied with, my individual opinion is, that it could not have availed the plaintiff. The property, when in this state, was subject to attachment at the suit of the creditors of the vendor, so long as his possession remained unchanged.” I cite the foregoing remarks of Judge Williams, not as authority, but as the individual opinion of an eminent judge, which is entitled to great respect, and in which opinion we fully concur.
The judgment of the county court is reversed and a new trial granted.