Plaintiffs replevied from defendant about 25,000 feet of hemlock lumber, described as studding, joists, and plank, 12 feet long and upwards.
This lumber had been sent to Grand Rapids, and placed on a dock there, under a contract of April 12, 1883, between Harvey C. Taft as vendor and Albert E. Rittenhouse as vendee, whereby 100,000 feet of hemlock lumber, of 2 inches thick and upwards, and of lengths from 12 feet upwards, as specified in a saw-bill, furnished, was to be delivered on the bank of the river, at the steamboat landing, by May 20, 1883, for $875, of which $150 was to be paid down, and the balance in two equal notes, due June 20 and July 20, to be given upon delivery of the lumber.
The cash payment was made at once, and the notes were given between May 7 and 9, and after correction were accepted May 12. Previously to this, one barge-load had been loaded, amounting to about 53,000 feet, or something over one-half of the whole amount purchased. A *29second barge-load was landed as early as May 17, and probably earlier. This also contained about 53,000 feet, and of this there were some, inch boards, the amount of which does not appear.
On some day in May, between the tenth and seventeenth, Rittenhouse made a mortgage to defendant, Byles, for $150, upon “twenty-five thousand feet of hemlock studding, joist, and plank, 12 feet long and upwards, the said lumber now being and lying on the dock (Ganoe’s) in the city of Grand Rapids, Mich.”
■ On June 1, 1883, before either of the notes given to Taft by Rittenhouse became due, Taft undertook to rescind the contract, and tendered Rittenhouse the $150 and the two notes, and demanded the lumber, which Rittenhouse said was not his to return.
Taft then replevied it on that day, and on the fourth made a sale to plaintiffs — who knew it was replevied — of the lumber on the landing, for which they were to pay $7.75 a thousand for so much as they received, to be measured when put on their wagons. They paid down $300. According to some of their testimony, it was supposed about 90,000 feet was on the dock. A large amount disappeared, which was supposed to have floated off. This occurred subsequently.
This 25,000 feet was drawn away before, so far as appears, any of the rest floated away. No payment was made to Taft by plaintiffs, so far as appears, beyond the $300. It is claimed that, including the 25,000 feet, they only got about 56,000 feet.
Defendant’s mortgage was filed May 17, 1883.
It cannot be claimed that plaintiffs were lona fide purchasers without notice, or that they ever became owners of any lumber which Taft did not own and was not in condition to deliver. Their purchase put them at no risks, and all the losses were Taft’s until the lumber was *30loaded on their wagons. It might be open to some question whether, under such a contract as the plaintiffs swore to, the. 25,000 feet held by defendant, and moved away before plaintiffs meddled with it, passed to them at all, mortgaged or not mortgaged; but as Taft and plaintiffs seemed to treat it as theirs, this point is not presented. But there is nothing to put them in any better' position than Taft himself would have occupied had he never sold to them.
A question was raised below of want of parties. But on the argument in this Court defendant waived all questions not going directly to the merits.
The court below made the case turn chiefly, though not entirely, on whether title passed to Bittenhouse, and left it to the jury to ascertain that fact; If it did, then the rescission, as was properly ruled, could not affect defendant’s mortgage, if otherwise valid.
We do not think that there is any room for doubt concerning the passage of the title. By the terms of the contract Taft was to deliver the lumber at the landing, and upon its delivery Bittenhouse was to give his two notes. The lumber was placed where the contract provided, and the notes were given and accepted. The claim now is that, because Taft put 6,000 feet of lumber in that had not been bargained for, it left the delivery uncertain, and no title passed.
We think that he could not, after receiving, as he did, the entire consideration in the manner called for in the contract, set up any such claim. All that he could possibly claim under such circumstances would be a right to take out the excess in such manner as not to inconvenience his vendee. Any other rule would favor the grossest fraud. The plain intent of the contract would be violated if, when the notes were given and lumber landed, the vendee could be deprived of ownership by any such device.
*31It is agreed on'all sides, that this question must be ■decided without reference to any fraud which might give Taft a right to rescind. No such rescission was attempted until June, after defendant’s mortgage had been recorded • a fortnight. This being so, Eittenhouse had power to deal with the lumber as lawful owner, and all persons acquiring rights in good faith should be protected.
The only objection made to defendant’s mortgage is that it is uncertain.
There is no uncertainty on its face. It is given for '25,000 feet of hemlock studding, joist, and plank, 12 feet long and upwards, lying on G-anoe’s dock. . The testimony shows, and the contract of sale to Eittenhouse shows, that this lumber was all reckoned at the same price by the thousand, and was presumably of the same value. Neither Taft nor plaintiffs are in any position to set up greater rights against it than Eittenhouse. He could not have disputed it, and could not have deprived defendant of the right to take that amount out of the whole mass. There is some dispute when this was done, but it was done before plaintiffs had selected it or moved it. As against Eittenhouse, if it was a fact that the second cargo came after the mortgage was made, it would not affect the right of 'selection, as the lumber was similar and treated as one mass. And when Taft set up his claim to rescind, he -could only do 30 subject to the equities existing against Eittenhouse.
The question of regularity of defendant’s foreclosure was not material. If not regular, which we see no particular reason to question, defendant was a mortgagee in possession, and plaintiffs could not deprive him of it without redemption.
The judgment must be reversed, with costs, and a new trial granted.
The other Justices concurred.