The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-10-03

ing the buggy. Nothing of the sort
appears here, how could it in a gen
eral retail store like this one; goods
were being sold and new goods
bought from number of dealers.
and became commingled in the gen
eral stock of the store. It would be
impossible to say that any particu-
lar lot of goods were bought with the
particular proceeds of the original
goods covered by the mortgage. But
the plaintiff does not seem to rely
much on this, but claims that he is
entitled to the possession of the after
acquired stock of goods,the payment
of the debt having been refused after
due demand, and demand having
been made of Daniels at Wailuku for
the possession of all of his stock in
trade, goods, wares, etc, etc., then in
his said store, the mortgage claim
ing to be entitled to the same under
said mortgage. Delivery and pos
session was refused. There is no
question as to the right of the mort
gage to the possession of the re-
mainder of the original stock at date
OF mortgage, the authorities cited
by plaintiffs sustain this posi-
ton, but the question is, what
is necessary to be done in
regard to the after acquired pro-
perty or stock to secure to him the
title in it. The plaintiff relies
strongly on the case of Chase VS..
Denny, $50, Mass. 566. In that case
the MORTGAGE of his own motion,
four days before proceedings in insol-
vency were begun, and nineteen
days before the mortgagor was adj
Indicated bankrupt, took actual
possession of all the property Gov
cred by the mortgage. The mort
gage covered after acquired pro-
perty, and it was admitted that
all the property taken was acquired
by the mortgagor after making of
the mortgage. Soule, j., in giving
the decision OF the Court, says ct
has been repeatedly held in this
commonwealth that a mortgage pur-
porting to convey all the chattels of
specified kinds which may thereafter
be acquired by the mortgagor. does
not give any title to those chattels
when acquired by him unless the
mortgage takes possession of them"
* i eff, however, the after
acquired property is taken by the
MORTGAGE into his possession before
the Intervention of any right of third |
persons he holds it under a valid |
lien by the operation of the provision
of the mortgage in regard to it.
This was held to be the rule in the |
case of Moody vs.. Wright, Is Met,
II, and we see no reason to question
its correctness"
In that case the mortgage did not
gain possession of the after acquired
property before the proceedings in
insolvency was set on foot, and the
mortgage was held to be inopera-
tive against the assignees in insol
vency.
Soule, j., further says "Such |
taking of possession, though effected
Immediately before insolvency pro-
ceedings 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
MORTGAGE 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
MORTGAGE did not take actual pos
session of the chattels; on the con-
trary, he was refused possession by
the mortgagor.
In the case of Mitchell VS.. Wise
low, 2 Story $50, cited by plaintiff,
the agent of the MORTGAGE took act
ual possession of the property. Con
structive possession under chattel
mortgage is Intellectual. The right
to possession is by virtue of the con-
tract and not as In an execution, by
virtue of the law. Possession must
be taken in fact; it cannot be taken
by words and inspection. 1t must
be actual, open, public" Jones on
Chattel Mortgages, Sec. 186.
There is not a. case cited nor do we
find case that supports the position
taken by the plaintiff, viz: That
upon making demand for possession
of the mortgaged stock, the estate
of the mortgage becomes absolute
and that they had the legal title to
the property. On the contrary, the
authorities seem to be all the other
way. The mortgage creates a lien
on the after-acquired property, but
to complete his title to the property
the mortgage must take actual pos
session of It before the proceedings
in bankruptcy is set on foot, or be-
fore the Intervention of third parties.
We have therefore to answer the
second question of law in the mega
tive. VT n
Smith for defendant. 49,, ,oo,
Honolulu, September 18th, 1881.