Perry v. . White

*199 Clark, J.: This is not the case of a mortgage upon realty in which improvements put upon the land by the mortgagor become additional security for the debt. Wharton v. Moore, 84 N. C., 479; Barker v. Owen, 98 N. C., 198. Nor is it the case of a mortgage upon crops, as to which it has been held that there could not be a mortgage enforceable at law, upon a crop other than that of the year immediately ensuing the execution of the mortgage. Loftin v. Hines, 107 N. C., 360, and cases there cited.- The mortgage here is upon trade-fixtures, which the mortgagor had the right to remove,, and riot only upon those existing when the mortgage was executed but also on those thereafter “ to be affixed.” The question presented, therefore, is as to the validity of a chattel mortgage upon subsequently acquired property, other than crops. At common law no mortgage was valid except upon property in existence and actually or potentially the property of the mortgagor when the mortgage is given. This doctrine has been modified to a varying extent in different jurisdictions. We need not consider the much discussed question whether a mortgage upon subsequently acquired property is valid as to third parties who have acquired rights by attachment or levy of an execution. The decisions on that point are diametrically opposed, and by Courts of the highest dignity. Herman on Chattel Mortgages, sec. 46; Long v. Hines, 10 Am. St. Repts., 192, and notes; Borden v. Crook, 19 Am. St. Repts., 23; Jones Chat. Mortgages, secs. 138, 171, 173, 174; Gregg v. Sandford, 76 Am. Decisions, 719, and notes 723-733; Moody v. Wright, 46 Am. Dec., 706, and notes. There is, however, almost a consensus of opinion, that a. mortgage upon subsequently acquired property is valid as to third parties when given upon the rolling stock of a railroad, upon the ground that such acquisitions are not for the purposes of resale, but for permanent addition and betterment in the use of the road which is mortgaged, and for the further reason that gener *200 ally there is a legislative act authorizing it. Pennoc v. Coe, 23 Howard, 117; 1 Jones on Mort., secs. 152-155; Cotten v. Willoughby, 83 N. C., 75; Herman, supra, sec. 48; Jones on R. R. Securities, secs; 121-145. In the present instance the controversy is between the mortgagor and the assignee of the purchaser at the mortgage sale. No rights of third parties have intervened. In such cases the great weight of authority now is in favor of the validity of such contract in equity, inter partes. Beale v. White, 94 U. S., 382; Jones Chattel Mort., secs. 161-166, and cases there cited; Ludwig v. Kilt, 20 Hun., 265; White v. Thomas, 50 Miss., 49; Wisner v. Ocumpagh, 71 N. Y., 113; Moody v. Wright, supra. It is needless to consider here whether or not claim and delivery proceedings lay for the recovery of the fixtures before being severed. The plaintiff under such proceedings actually took possession and removed the buildings “afterwards erected,” as specified in the mortgage; they have since been destroyed by fire, and as the •mortgage thereon was valid as between the parties, it is clear the defendants cannot recover the value of the property, which ceased to be theirs after the sale under the mortgage. Affirmed.