Re Allen's Estate

TAFT, J. The case at bar is within the general rule that a mortgage óf chattels can operate only on property actually in existence at the time of giving the mortgage, and then actually belonging to the mortgagor or potentially belonging to him as an incident of other property then in existence. There maybe exceptions to this rnle, but it is unnecessary to notice them save- to say that the principal one is in case the mortgagee takes actual possession of the subsequently acquired property. Neither do we need refer to the effect between the parties of a mortgage of property acquired subsequently to its execution. The claimant did not take possession of the property in question and no possession was taken for him by Mr. Crowell. The fact that the latter thought that the mortgages were liens upon the subsequently acquired property did not affect the character of his act. His mistake as to the effect of the mortgages no doubt may have misled him had his intent been to take possession on behalf of the mortgagees. He “took possession for the purpose of preserving the property so that it could be held to be divided among the creditors according to their respective rights.” It was not a right of the claimant to have his debt made a lien upon the subsequently acquired property unless he took possession of it under his mortgage. Not having done so he can have nothing under his mortgage save the property that was in existence at the time of the execution of and that was covered by it. The value of such property was thirty-four fifty one hundredth dollars, and that sum the claimant recovered below. The judgment was correct; the same is affirmed and ordered certijied to the court of insolvency.