Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1905-06-28
HuRRrLn VS.. wmTcoMB.
peeision Of Supreme Court Reversed
by the Law Court.

the law court. IL feNttses the ueelsloh
:, The supreme court, which gave judg-
,ueut for defendant.
This case was tried at the last October
,o.u Of the supreme court in Hancock
oorntv Judge Powers presiding. The
ar,ion was brought by c. c. Burrill
agsinst II. f. whitcomb, who, as sheriff,
acting for another creditor, seized several
ohests Of tea from a store on which
,lointiH had blanket mortgage which
~ claimed covered not only goods in
s,ock when the mortgage was made, but
stock added later.
The reseript from the law court, which
Ia by Justice Whitehouse. follows:
mortgage Of cha,tels including all stock in
,,.Ae. furniture and fixtures that may there
sf,er be acquires. contained the further pro
v,.,op tha, the mortgsgee shoula have the riRht
10 take possession Of the mortgsgcd property
nd Of any additions that might be made thereto.
,xbepeyer he should deem IL for his interest so
to do.
In thls case the plaintiff a. mortgage, took
no,session Of the mortgaged property inclad-
iog the after acquired s'oek IN question for the
pprposc Of enforcing HE rights under the mort
cage, and sought TO retain possession Of IL as
.zslnst an attaching creditor.
ou,rtd stock on the part of tho mor.gagor at
apy time after IL was purchased by him and
possession of IL was taken by The MORTGAGE
w,,hont any other consent OF the mortgagor
than that contained in the agreement found in
The mortgage.
The presiding judge ruled as q matter OF law.
that "sne mortgage OF future acquired chattels
WAS void against an attaching creditor without
some new act on the part OF the morsgagor and
that possession taken without the consent OF
the morsgagor and retained by the mortgage
before And until the attachment, was not saf.
aeient to make the mortgage good" The case
comes to this court on exceptions to this ruling.
The respective rights OF MORTGAGE aud at.
tach!ns creditors or other third paries 10
gard TO after acquired property claimed under
ehatlel mortgages upon facts analogous to those
At Tar, have frequently received the attention of
this court aud ohiter dicsa may be found and
some early authorities are cited In several
Maine cases tending 20 support the defendani's
position; and on tho other hand. recent de-
eisions from other states have been cited with
approval tending to support the plaistia's con
tentson, but the precise question now presented
does not appear to have been necessarily In
volved and directly determined 10 any reported
esse 10 this State.
II has often been decided. however. In other
Jurisdictions by courts of great respecsabiisy
and hlah authority. and this court Is now at
liberty to adopt the view which Is most In
cord With the principles of equity and sound
reason and nj the same time best supported by
the weight of judicial opinion 10 other Ameri-
can states.
his well settled principle 10 equity requir
ing DO citation OF authorities 10 Its support that
an agreement TO give security upon property
not ret in existence or In the ownership of the
party making the contract, or property 10 be &c.
quired by him In the future, although. with the
exception OF chaIiels having potential exist-
euee" Il creates no legal estate In the things
when they afterwards come into existence or
are acquired By the promisor. does constitute
an equitable lien upon the property so existing
or acquired at n subsequent time, which Il en-.
forced Ia the same manner and against the same
parties as lien upon specific things existing
and owned BY the contracting party al the dare
OF the contract.
In recent years. the court has shown strong
tendency to reject the narrow interpretation OF
the common law rule found Ia some of the.
earlier decisions. and a readiness to adopt q
more reasonable and equitable doctrine which
simply requires the morigagor to observe the
obligation OF his express agreement In the mort
gage The common law dogma which Is saia TO
require some new act on the part OF the mort.
gasof 10 project the mortgagee's lien, appears
to have becn founded mainly upon one Of Lord
Bseon's Latin maxims which declares that
though the grant Of future interest Is Invalid
yet declaration may be made which will take
elect on The Intervention of some new actin
teryeniente noyo aetu"
As one OF the first instances stated by
Lord Bacon to illustrate the maxim had refer
ence TO a new act" on the part OF a Erantor. II
appears to have been assured by come Of the
courts that no other act would suffice 10 cneeta-
ate the prior agreement. Bat su n restricted
meaning was not required by the text Of the
maxim. aud II was explicitly repudiated In
subsequent cases.
1t is uniformly conceded that II the MORTGAGE
takes possession OF after acquired property. In
accordance with an expressed agreement In the
mortgage, with the consent OF the mortgagor
given after I've acquired title, It viii be sufficient
70 perfect the mortgages lien. But q stpuia-
'ion 10 the mortgage authorizing she mortgage
to take possession at any time Is not a mere H.
eense reyocshle at the pleasure of the mort
sasor. but valid and binding contract which
contains 10 force until performed
II Ia therefore difficult to understand upon
what principle of justice conception Of com
mon right, mor,gagor can be permitted to de-
teas the acknowledged equitable rights OF the
mortgagee by simply withholding his consent
In violation Of his express stipulation in the
mortgage. According 70 this doctrine, " the
mortgagee seeks TO exercise his right TO take
possession of the property under the mortgage,
ana the martgagor gives an express assent, NOT
required by the terms of the mortgage. the
mortgagec's equitable rights are preserved.
On lhe other hand, If the mortgsgor objects.
nj DC auds uaut 10
the mortgagee's possession, though expressly
authorized by tie contract OF the parties, Will
not suffice and his rights are lost. Such rule
cannot be founded on principles of right and
justice
And 1t viii be seen that such rule has no
stronger support In authority than II has In
reason and equity.