Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-12-11

mortgage of chattels not then in ex-
istence was invalid, it has now become
settled principle in this State that
person may mortgage after acquired
property, and as between the parties
a mortgage upon goods which author
ICES the mortgagor to sell them, and
with the proceeds of such sale to pur
chase other goods to take their place,
will be upheld. Something more than
the authority given in the mortgage
under consideration, or the actual &C
curing of the new property, is nee
essary where the rights of third parties
intervene, as in the case at bar.
Where the power sought to be created
Is effectual,- the mortgage must be in
actual possession of the property
mortgaged If he would defeat the
claims of other creditors Such mort
gage to have the effect contended for
by the defendant must contain apt
words to designate the power to sell
from the stock SO mortgaged, and the
further stipulation that the proceeds
Of such sale shall be applied to the
purchase of new articles of like kind
to those sold, the chattels so purchased
to become substituted for those sold at
Of the mortgagee, so that the legal
title to them may be said to pass to
the mortgage as effeectually as If he
had himself made the sale, by assent
of the mortgagor, and with his own
hand replenished the RES. The mort
gagor by so doing simply executes a
power, performs a trust created by the
mortgage, and thereby neither de-
pletes the security nor defrauds his
other creditors
2. The defendant in any event
could take under Its mortgage only
such goods or fixtures as it has shown
title to, which were in existence at the
| date of the mortgage, and those sub
stituted for articles sold by purchase
from the proceeds of sales from such
mortgaged stock. To hold otherwise
would be violation of an established
principle of law, and sound public
policy.
3. Where once the trustee Is APP
pointed, his title to the bankrupts es-
tate relates back to the date of ad-
Indication, and he takes the property
| of the estate subject to all equities.
liens and membranes existing
against it in the hands of the bank
rupt. The plaintiff having taken pos
session, the property, was then in the
custody of the law. and could not be
removed from that custody by any pri-
vate person. or by any process issuing
out of this court.
4. When court, State or Federal,
has once taken into its possession a
specific thing, no court, except one
having supervisory control or super
ior Jurisdiction in the premises, has
a right to interfere with or change
that possession.
5. The trustee was an officer of the
law; he had possession of the goods,
and his possession was the possession
of the law. The defendants right to
follow the property, If it ever existed.
was suspended on the appointment of
the trustee. The Trustee had acquired
superior rights by virtue of his office.
The defendant, not having possession
of the goods, and having no right to
possession as against the trustee, had
the burden of showing title to the
goods claimed by it under the mort
gage, viz, such goods as were in ex-
istence at. the date Of the mortgage,
and the goods, if any. substituted for
articles sold by purchase from the
proceeds of sales. It did not attempt
to show either. 1t could not hold after
acquired goods because it did not have
possession before the adjudication in
bankruptcy. AS to original goods on
hand at the date Of the mortgage, If
any, the record is silent, and the trus-
tee, who otherwise might have been
able to determine the rights of all
parties was deprived of the only
means Of accomplishing that end by
the act of the defendant in removing
the goods and placing them beyond
the reach of the trustee and all other
parties in interest. The defendant,
after such act, may not now invoke
the aid of the court under the rule re-
lating to personal property informing
| led wilfully or otherwise.
Judgment for the plaintiff for $46O.64
Received Dec. s, 1914.