Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-06-26

mOTtSaSOr 10 protect the mOrtEagee'S
lien, appears to have been founded
mainly upon one of Lord Bacon's Latin
maxims which declares that though
the grant of a future interest is invalid
yet Il declaration may be made which
will take effect on the Intervention of
some new ct,-interveniente novo
actu." AS one of the first instances
stated by Lord Bacon to illustrate the
maxim had reference to q new act"
on the part of a grantor, it appears to
have been assumed by some of the
courts that no other act would suffice
to efectuate the prior agreement. But
such a restricted meaning was not re-
quiied by the text of the maxim. and
it was explicitly repudiatcd in subse-
quent cases.
1t is uniformly conceded that if the
mortgage takes possession of after
acquired property, in accordance with
an express agreement in the mortgage,
with the consent of the mortgagor
given after he acquired title, it will
be sufficient to perfect the mortgages
lien. But a stipulation in the mortgage
authorizing the mortgage to take pos
session at any time, Is not mere Ii
cense revocable at the pleasure of the
mortgagor, but a valid and binding
contract which contains in force until
performed. 1t is therefore difficult to
understand upon what principle of JUS
ticc or conception of common right, a
mOrtgagor can be permitted to defeat
the acknowledged equitable rights of
the mortgage by simply Withholding
1t, til 80 III,
stipulation in the mortgage. According
to this doctrine, if the mortgage seeks
to exercise his right to take possession
of the property under the mortgage,
and the mortgagor gives an express as
sent. not required by the terms of the
mortgage, the mOrtgagec's equitable
rights are preserved. On the other
hand, if the mortgagOr objects, in vio-
latiOn Of his agreement or stands. mute.
the mortgagee's possession, though ex-
pressly authorized by the contract of
the parties, will not suffice and his
rights are lost. Such rule cannot be
founded on principles of right and JUS
tice.
And it will be seen that such rule
has no stronger support in authority
than it has in reason and equity.
Put it is suggested that by Sec. 1 of
Chap. 80, r. S., mo mortgage of per-
sonal property is valid against any
other person than the parties thereto
unless possession of such property
delivered to and retained by the mort
gagce, or the mortgage is recorded,
etc" In this case, it has been seen the
mortgage was duly recorded, and pos
session of the good therein described,
including the after-required property.
was rightfnlly taken and retained by
the mortgage by virtue of the consent
of the mortgagor previously granted
in the stipulation of the mortgage. 1t
is universally conceded. as before stat
ed, that possession taken by the mort
gagce, by virtue of the mOrtgaSor's
consent given after the property is ac-
uuired, is to be deemed equivalent TO
voluntary delivery by the mortSaSor,
and such "new act as will effectuate
the previous agreement. 1t appears
from the uniform current of modern
decisions that the law has advanced
another step. and holds. that actual
possession of such property taken by
the mortgage in the exercise of an
authority expressly granted in the
MORTGAGE. is also equivalent to a VOL
untary delivery by the mortsagor, and
If such pOssession Is retained, it makes
good the mortgagee's lien as against
an attaching creditor. Statutory pro-
visions for the registration of chattei
mortgages in effect precisely like our
own. existed in all the states from
which the foregoing decisions nave
becn cited, but in no case directly IN
yolving the questions now before the
court. have they been held to be
in conflict with the equitable doc
trine above stated.
Nor is it apparent that such a con-
tract respecting after-acquired proper
tv is in contraventiOn of any estab-
lished rules of public policy. Indeed 1t
,vould seem to be more in obedience TO
the principles of sound morality ana
considerations of public duty to sane
tion the act of the mortgage in taking
and holding the property in accord
ance with the express terms or the
contract rather than the act OF the
uortgagor or an attaching creditor IN
taking it away from him in violation
of the agreement.
IT is accordingly the opinion OF the
court that the action is maintainaoie
and that the entry must be
Exceptions sustained.