The positions taken by the opposing counsel have been fully and ably presented, in their respective arguments ; but, in the view we have taken of the case, it has become unnecessary to express any opinion upon several of the points raised. We have directed our attention more particularly to one, which is a leading and material one, and decisive of the case.
*28The instrument offered in evidence by the petitioner, as the foundation of his claim, purports to convey to him certain articles of personal property, consisting of hides, skins and bark, all then in existence, and in the possession of the grantors, and also whatever hides, skins, bark or stock, of whatever description, that may hereafter belong to the grantors, wherever situated, and whether manufactured or not, and at market or not, or the proceeds, if sold; also, all leather, thereafter manufactured from the proceeds of property then on hand, and in whatever shape the property might thereafter exist, or whatever form it might assume; so that the then present and future property and earnings of the tan works might stand conveyed, pledged and hypothecated to the peti tioner.
' This instrument, so far as it purports to mortgage the property of the mortgagors then in existence, and held by them, was in all respects a valid instrument; and if any such property now remains for it to operate upon, it will be effectual to pass the same to the petitioner. We understand, however that the case shows no such property in the hands of the assignee, and that the specific property conveyed by the petitioner to Wright & Hoxse, and by them reconveyed in mortgage to him, has no longer any existence, and that the only ground of sustaining this petition is that of a lien upon subsequently acquired property, which had no existence at the time of the execution of the mortgage, and which has no other connexion with it, than that, to some extent, it may have been purchased with funds which were the proceeds of various sales from the tannery; first of the articles purchased, and their proceeds applied to the purchase of new stock, which, when manufactured, was again sold, and its proceeds invested; and so from time to time. This instrument is clearly, therefore, an attempt to mortgage or hypothecate after acquired property. Can such security be made effectual by the making and recording of such instrument, without any further act of the parties, with no delivery by the mortgagor, and no act on the part of the mortgagee *29taking possession or exercising any rights of property in the newly acquired articles, by virtue of the provisions in the mortgage, as to such property ?
This subject has been recently before us, in the case of Jones v. Richardson, 10 Met. 481, involving the question as to the validity of such a mortgage in a court of law. The subject was very maturely considered, and the court were all clearly of opinion that such mortgage did not pass after acquired property. It was stated, in that case, as an elementary principle, that “ a person cannot grant or mortgage property of which he is not possessed, and to which he has no title.” All the qualification introduced was, that one may grant personal property of which he is potentially, though not actually, possessed ; as in the case of the grant of all the wool that shall grow on the sheep he owns at the time of the grant, but not wool which shall grow on sheep not his, but which he may afterwards buy.
In our opinion these principles as to conveyances of property are equally sound, and equally to be enforced, whether the question as to the right of property is raised in a court of law, or of equity. The parties appear before us, each claiming the property by conveyance ; the petitioner by the instrument already recited, and the defendant as assignee, holding by virtue of a deed from a master in chancery, for the benefit of all the creditors of Wright & Hoxse. Whether it would really be more equitable, in a case like the present, that the after acquired property should be holden by the one party or the other, whether the claims of the individual creditor would, in an equitable view, be more meritorious than those of the entire body of creditors, seeking a distribution pro rata, would depend, not so much upon any thing disclosed on the face of the mortgage, as upon a full knowledge of the entire course of business of the mortgagor, and the circumstances appertaining to the property which is now the subject of controversy, the mode of its acquisition, &c.
Supposing ourselves clothed with full equity powers, and treating this case as before us unembarrassed by any question *30as to our limited jurisdiction in chancery, we are not satisfied that the petitioner has shown any such title to this property as would authorize us to hold it to be subject to a lien for the note of Wright & Hoxse to the petitioner, as against creditors who have acquired a right to it before any act of the petitioner had taken place, reducing the property to his possession, or by asserting effectually any right under the prospective hypothecation, as by making a claim and taking possession under it, while in the possession of Wright & Hoxse, There are doubtless equitable liens, which may be enforced in courts of equity, though not available in a court of law. Many such might be enumerated. That which nearest approaches the. present case is that of an agreement to convey property, or do some act, the performance of which has been casually postponed ,• and in dealing with the rights of the parties in such case, a court of equity will consider a thing done which was agreed to be done. That class of cases does not present, however, the difficulties that arise in the present case. The property which is the subject of the agreement, in the case supposed, was in existence, and the power to convey the same, or stipulate for a conveyance, existed. Nor do the cases of Davis v. Newton, 6 Met. 537, and Eastman v. Foster, 8 Met. 19, at all conflict with the view we have taken of the present case. The property, in reference to which those cases presented questions, was in existence, was susceptible of being conveyed, and was the. subject of bargain and sale. In the case of Eastman v. Foster, more particularly relied upon, the mortgage was a good and valid mortgage in law, and of property then in existence ; and the party only went into equity to enforce a claim arising under such valid mortgage. The case was one of implied trust, of which this court has jurisdiction, and which it may well enforce.
The difficulty that presses in the present case is the want of any binding original contract, which per se could have force and effect to change the after acquired property, without some further act by the parties, after the property should have come into existence. Such act we deem to have been *31necessary to perfect the title of the petitioner, whether his rights of property in such after acquired articles are sought to be enforced in equity or at law. We are fully aware that a different view of this question was taken by Mr. Justice Story, in the case of Mitchell v. Winslow, 2 Story R. 630, and that the result to which he came differs from ours as to the effect to be given to such mortgages in a court of equity. In relation to that case, it is supposed by the counsel for the petitioner, that it had, to some extent, the sanction of this court, in the remarks of the judge who delivered the opinion in the case of Jones v. Richardson. But we apprehend that no such view was intended to be suggested. The case then before the court was an action at law; and the obvious and quite sufficient answer to the case of Mitchell v. Winslow, which was relied upon by the then plaintiffs, was, “ that was a case in equity,” without entering upon the further inquiry whether we should, as a court of equity, in a case before us, come to the same result. The case of Langton v. Horton, 1 Hare, 549, much relied upon as sanctioning the doctrine that such conveyance might, be supported in a court of equity, seems to us to go no further than this, viz. that there having been such a contract between the parties, as would in equity have given the plaintiff a title to the cargo when it arrived, and that contract having been perfected by possession lawfully taken, it being a case of property mortgaged while at sea, and it being sufficient to take possession forthwith on its arrival, the plaintiffs were entitled to hold under this contract, as against a judgment creditor. On the other hand, another adjudication may be referred to as strongly sustaining the view we take of the invalidity of this mortgage, in equity. I allude to the case of Mogg v. Baker, 3 Mees. & Welsh. 195, in the court of exchequer. As I understand that case, the doctrine that a lien may be enforced in equity, in a case like the present, is wholly repudiated. The court held that an agreement to mortgage certain specific furniture then in existence would constitute an equitable title in the party holding such agreement, and prevent its passing to the assignees *32of the insolvent; but if it was only an agreement to mortgage furniture to be subsequently acquired, then it would confer no right in equity. It is true, as was remarked by the counsel for the petitioner, that the court were dealing there with the equity principle of construing that to have been done which was agreed to be done; but no question arose as to the correctness of that principle of equity, and the only point of controversy was, whether, taking that to have been done which was agreed to be done, it would constitute a valid equitable lien. And whether it would do so or not, was made to depend upon the fact whether the property was subsequently acquired; and, if so, it was held that the agreement would confer no right in equity. The doctrine of that case, which seems fully to sanction the principle we have adopted in the present case, was affirmed by the court of Queen’s Bench, in Gale v. Burnell, 7 Adolph. & Ellis, N. R. 850.
The result to which we have come, upon the present petition, may be stated in the following propositions : The petitioner cannot hold the property in controversy, as mortgaged property, because it was not in existence, and therefore not capable of being conveyed in mortgage, at the time when the mortgage was made. The instrument could not operate to pass the property as a pledge, because the custody of the same was not taken and retained by the pledgee. The property cannot be held as charged with a lien, because a lien cannot be created by an executory agreement, without being accompanied by possession or delivery of the property. A stipulation that future acquired property shall be holden as security for some present engagement, is an executory agreement, of such a character, that the creditor with whom it is made may, under it, take the property into his possession, when it comes into existence, and is the subject of transfer by his debtor, and hold it for his security ; and whenever he does so take it into his possession, before any attachment has been made of the same, or any alienation thereof, such creditor, under his executory agreement, may hold the same ; but, until such an act done by him, he has no title to the same ; and that, such act *33being done, and the possession thus acquired, the executory agreement of the debtor authorizing it, it will then become holden by virtue of a valid lien or pledge. The executory agreement of the owner, in such case, is a continuing agreement, so that when the creditor does take possession under it, he acts lawfully under the agreement of one then having the disposing power, and this makes the lien good. If, however, before taking possession, or doing such acts as are necessary to give vitality to the mortgage, as to the subsequently acquired property, an attachment or assignment for the benefit of creditors takes place, the opportunity for completing the lien is lost, and the mortgage or pledge not being perfected, the property-passes to the assignee, and must be held by him for the benefit of the creditors generally.
There was no act done by the petitioner and by Wright & Hoxse jointly, or by either of the parties, which was sufficient to give effect to the original mortgage, as to the after acquired property. The recording of the mortgage by the petitioner did not; for that was before such property was acquired. The annual payment of interest by Wright &, Hoxse could have no such effect. It was neither actually nor symbolically accepting the transfer or conveyance of th< articles after they were acquired by Wright & Hoxse.
As to the point suggested, that this agreement between these parties might be treated as a conditional sale by the petitioner, the change of property to take effect only on payment of the note ; it was competent for the petitioner to have made such a conditional sale, and the effect of such sale would have been, that he would not have been divested of the property in the articles thus conditionally sold. But no such principle can avail the petitioner here, as no articles remain in existence that were his property and possessed by him at the time of the sale. The petitioner seeks not to reclaim such articles, but those subsequently acquired by his debtors. Nor is there any ground for the suggestion that this may be treated as the constitution of an agency on the part of Wright fc Hoxse, and that, as such agents, all their acquisitions would *34enure to the petitioner as the principal, until the note of Wright & Hoxse was fully paid.
In no way, that we perceive, can we give effect to this contract, so as to give the petitioner the lien, upon the aftet acquired property, that he seeks to establish.
Petition dismissed with costs.