The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-10-06

OF morsgsge tie shi5ofities cited
BY plaintiffs sustain this posi-
ton. but the question il whal
IS necessary to be done in
regard to the after acquired pro
perry or stock 10 secure 10 him the
title in it. The plaintiff relies
strongly on the csss or Chsss W.
Denny, 1S0 Mass, SO. In that usss
the mortgage Of his own motion,
four days before proceedings in insol-
veDey we're begun. and nineteen
days before the morkRsgor WAS adj
Indicated q bankrupt, took sctusl
possession Of al the properly Gov
cred By the mortgage. The mort
gage covered sftsr sequirsd pro-
perry. and il was admitted that
sll the property taken wss acquired
BY the mortgsgor after making Of
the mortgage. Soule. j., IN giving
the decision OF the Court, ssys: at
hiss been repeatedly held IN this
commonweslth that 9 mortgage par-
porting 70 conssy all the chaftsls Of
specified kinds which may thereafter
be sequired BY the mortgsgor. does
not give shy title 10 those chstaels
when SECURED BY him unless the
mortgage takes possession OF them
. IF, however, the after
acquired property is taken BIZ the
mortgage into his possession before
the Intervention OF any night Of third
persons he holds it under q valid
lien by the operation of the provision
OF the mortgage IN regard 10 il.
This wss held to be the rule In the
case of Moody vs.. Wright, Is Met,
IL, snd We see no reason TO question
Its correctness"
In that case the mortgages did not
gain possession Of the after scquirsd
before the proceedings in
insolvency wss set on foot, and the
mortgage wss held to be inopers-
tive against the sssignees in insol-
yeney.
Soule, j., further says: such
taking of possession, though effected
Immediately before insolvency pro-
were instituted, and with
full knowledge of the insolvency of
the mortgagor, would not be the
acceptance OF the preference, but
the assertion of right which had
been previously acquired by the
under an instrument in
writing made when the parties to it
were both competent to contract, and
when there was no qualification Of
the right of either TO deal with the
Other."
In the case at bar, the plaintiff
nortgsgee did not take actual pos
session of the chsttels; on the con-
trsry, he was refused possession by
he mortgagor.
In the case Of Mitchell VS.. Wise
ow, 2 Story $50, cited by plaintiff,
he agent Of the mortgage took act
1sl possession of the property. ~Con-
,tructiEe possession under 9 chattel
mortgage is Intellectual. The right
% possession is by virtue of the COM
.ract and not as in an execution, by
7lrtue of the law. Possession must
De taken in fact; it cannot be taken
oy words and inspection. It must
De actual, open, public" Jones on
Jhattsl Mortgages, Sec. 1S6.
There is not a case cited nor do We
ind case that supports the position
aiken by the plaintiff, viz: That
1pon making demand for possession
IF the mortgsged stock, the estate
IF the mortgage becomes absolute
md that they had the legal title to
he property. On the contrary, the
authorities seem to be all the other
way. The mortgage creates q lien
IN the sfter-scquired property, but |
o complete his title to the property |
he mortgage must take actual pos
session OF It before the proceedings |
n bankruptcy Is set on foot, or be- |
ore the Intervention of third parties. |
We have therefore to answer the 1
econd question of Law in the negs-
i've.
T. II. Hatch for plaintiff; ". O. |
smith for defendant. |
Honolulu, September 18th, 1891. |