The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1876-08-23

The plaintiff claims The sum Of Sl5Sl.o0 from
the proceeds Of certain goods and chat,els Of III
defendants bankrupt, sold by them As his assis
nees.
The ulaiutlf claims IS mortgages under chat
TEL mortgage dated May 9th. 1872, duly Ne
corded. Of the following described property, VIZ
one hearse. one express wagon. one pair o
horses and one set Of double harness also Al
the furniiurs Of every description and all cabinet
makers tools nov in nv warehouse and shop No
$ King street or that nav hereafter come iniC
the said Ezrshouse and shop No. $ King
street"
The statement Of facts shows that none Of the
goods and chaitels which cane into the defend
ants possession. and which they sold as ths
morirar0rs assiruees IN bankruptcy, we're in The
possession Of the mofigSgog al the time tbs
mortgage was executed. bui were ACQUIRED bs
hIn subsequently and that none Of the said good:
were purchased with the proceeds al the goods
inciuied in the mortgage or exchanged therefor
except one buggy which Vas exchanged TOT
q set Of furniture which vas 10 the possession d
the said Donnei al The time Of The execution o.
The mortgage
The question presented is whether S mortgage
Of Is furnIirre and cabinet makers tools that nay
hereafter come into nv warehouse and shop Sc
Is valid IS against the mortgagor's assignees.
HlI,iArd SAYS. as general rule, an assignment
VIII DOL a. Law pass chattels not 10 existence, or
not IN the Ownership Of the grantor, or not sufh-
GENTLY appropriated at the tine Of the assign
ment NAV have effect hy 8 subsequent act Of The
rrzntur in furtberanee Of the original dispoSi-
lion , Hill miges- p $50 In Jones vs.
Richardson To- Met ass. i Is sid. That q
person cannot grant or mortgage property, Of
which be Is not possessed aud 10 which be hiss
10 title Is 8 maxim Of the Law too pi2in TO need
illustration aud which Is falls Supported by zll
the authorities
Its true that : person may grant personal
property Of which he Is potentially though not
aciEally possessed. A nan may therefore grant
al The wool that shall grow on the sheep, which
be oEus al the Tine OF the grant, bni not the
wool which shah grow on sheep DOT his. bat
which he af,erEards may bay
See also-Chesley IS JOslyu. Cray 4S9
Barnard rs. Eaton. 2 Clsh., ga MOODY vs.
Wright. Is Met 81.
In the case Of Hardy IS. RuEzles e. al, Ia
Eaiian r. p 23l. Judge Robertson said. The
most Objectionable feature in the mortgage and
one upon which have reflected deeply Is the
clause which includes il tie Transfer all The in
coming stock il trade OF every kind and eharacter
whatever l an of the opinion. that so far as
this provision was intended to apply to any in
coming stock, other than goods which can be
shown 10 have been bought and paid Tor with
monies arising from tie sale Of the stock in the
store at the lime the mortgage was executed.
such provision must be regarded IS void so far
Is third parties are concerned
This mortgage then Of goods which Donuell
did not own Ehsa the mortgage was made and
which were not IN his possession. is void as
aEainst his creditors and also IS against his IS
sicneez 10 bankruptcy who represent them.
The point made by the plaintiff that be took
possession Of these goods on the day Of The
bankrupis failure but before the attachment By
the Marshal. cannot avail him a6y. for il would
be trespass for him 70 take goods which we're not
covered by his mortgage.
As regards the baggy it Is admitted that it
was received by DonoeI 10 exchange for set Of
furniture which vas 10 bis possession st the time
the mortgage vas executed and covered BY it.
With0ni discussing other authorities, it seems
70 Us that il falls within the principle Of Hardy
" Ruggies above cited that is. it Is the fruit,
and springs naturally oft Of tie cbattels enume-
rated IN the mortgage" bsing goods purchased
and paid for with the proceeds Of the original
goods FOR the buggy was substituted for the
sci OF furniture. aud that would be no different
iron selling the furniture aod with the proceeds
purchasing the buggy.
Judgment for plaintiff for Sl6250. Costs
divided.
CEAS. G. HARRIS
A.FRANCIs JUDD,
Justices Supreme Court.
Honol1lu August Sth. 1876