Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-06-26
BURRlLL VS.. WHITCoMB.
Excerpts Sustained by Supreme Court
and New Trial Granted.

Burrill VS.. Whitcomb Rescript by
Whitehouse, j.
A mortgage of chattels including all
stock in trade, furniture and fixtures
that may thereafter be acquired, con-
tafned the further provision that the
mortgage should have the right to take
possession of the mOrtgaged property
and of any additions that might be
made thereto, whenever he SHOULD
deem 1t for his interest SO to do.
In this case, the plaintiff as mort
gage. took possession of the mortgagel
property including the after acquired
stock in question for the purpose of en-
forcing his rights under the mortgage.
and soughtto retain possession of it
as against an attaching creditor.
There was no act of delivery OF such
after acquired stock on the part of the
mortgagor at any time after it was
purchased by him and possession of it
was taken by the mortgage without
any other consent Of the mortgagor
than that contained in the agreement
found in the mortgage.
The presiding judge ruled as a matter
Of law. that 1.-The mortgage of future
acquired chattels was void against an
attaching creditor without some new
act on the part of the mOrtgagor and
that possession taken without the con-
sent Of the mortgagor and retained by
the mortgage before and until the at
tachment, was not sufficient to make
the mortgage good. The case comes to
this court on exceptions to this ruling.
The respective rights OF mortgage
and attaching creditors or other third
parties in regard to after acquired
property claimed under chattel mort
cages upon facts analogous to those at
bar, have frequently received the at
tention of this cOur., and Obiter dicta
may be found and some early authori-
ties are cited in several Maine cases
tending to support The defendants po-
sition; and on the other hand, recent
decisions from other states have been
cited with approval tending to support
the plaintiffs contention; but the pre-
else question now presented does not
appear to have been necessarily in
volved and directly determined in any
reported case in this State. 1t has often
been decided, however, in other juris-
dictions by courts Of great respectapih-
ty and high authority. and this court
is now at liberty TO adopt the view
which Is most in accori with the prin-
ciples of equity and sound reason and
at the same time best supported by the
weight of judicial opinion in other
American states. 1t IS well settiet
principle in equity requiring no citation
of authorities in its support that an
agreement to give security upon prop
erty not yet IN existence or In the own
ership of the party making the con-
tract, or property to be acquired by him
in the future, although. with the excep-
. ton of cEattels having potential exis-
tence" /. creates no legal estate In the
things when they afterwards come into
existence or are acquired ny the prom
3sor. does constitute an equitable lien
upon the property 50 existing or ac-
Uuired at q subsequent time, which Is
enforced in the same manner ana
against the same parties as lien upon
specific things existing and owned by
the contracting party at the date OF
the contract"
In recent years, the court has shown
a strong tendency to reject the narrow
INTERPRETATION OF the common law rule
found in some OF the earlier decisions
and a readiness to adopt more rea-
sonable and equitable doctrine which
simply requires the mortgagor to o.
serve the obligation of his express
aereemcnt in the mortgage. The com
mon law dogma which Is said to re-
uuire some new act on the part OF TN