Judge v. Jones

McAlister, J. Action of replevin to recover wagon and harness valued at forty dollars. Judgment in favor of defendant. Plaintiff appealed, and has assigned errors. [21] The defendant, Jones, it appears, was a farmer, and, desiring to secure his merchants, Thomas F. Duffin & Co., of Memphis, the payment of a debt he then owed them, and also to secure them for money and supplies to be advanced, did, on March 9, 1895, convey to the plaintiff, Judge, as trustee for said Duffin & Co., his crops of 1895, and certain live stock, farming implements, wagons, etc. The deed of trust contained this clause, to wit: ‘ ‘Also all tools, gearing, and implements of whatever kind used and to be used in making and gathering said crops, including wagons of whatever kind, ’' etc. About six months after this trust deed was executed, Jones, the mortgagor, applied to the said Duffin & Co. to purchase for him a wagon and harness with which to gather the crops included in the trust deed, and, thereupon, said firm did purchase for him ,a wagon and harness, at an outlay of sixty dollars. This amount was charged to Jones on his indebtedness secured by the trust deed. Jones having made default in paying the debt so secured, Judge, the trustee, brought this action of replevin to recover the possession of the wagon and harness, insisting that it was embraced in the clause of the trust deed which conveyed “all tools, gearing, and implements of whatever kind used and to be used in making and gathering said crops, including wagons of whatever kind.” The only question we are called upon to deter [22] mine, is whether this wagon and harness — after acquired property — is covered by the trust deed. The Circuit Judge instructed the jury that if they found, from the evidence, that appellee did not own the wagon and harness at the time he gave the trust deed, and that Duffin & Co. did not retain the title when they bought them for Jones, they should find a verdict for Jones. In this we think there was error. It is now well settled that a valid mortgage may be made of property not in existence at the date of the mortgage, so as to operate and attach to it so soon as it comes into existence, and make it an effective security for the debts provided for in the mortgage. 15 Am. & Eng. Enc. L., p. 749, and authorities there cited. Accordingly, it has .been held that a mortgage of the future increase of live stock is valid. McCarthy v. Blevins, 5 Yer., p. 195; 54 Am. Rep., 576. Also the future cargo of a vessel. Langston v. Horton, 1 Hare, 549. Also the future rolling stock of a railroad. N. O. R. R. Co. v. Miller, 12 Wallace, U. S., 362. Also the furniture to be placed in a hotel in the future. Wright v. Bircher, 72 Mo., 179. Also the mules that in the future may be bought and placed on a certain plantation. Sillers v. Lester, 48 Miss., 513. Also the crops yet to be grown on certain soil. Cayce v. Stovall, 50 Miss., 396; Jones on Chattel Mortgages, Sec. 174; Little Rock Railroad v. Page, 35 Ark., 304; Ted [23] ford v. Wilson, 3 Head, 312; Watkins v. Wyatt, 9 Bax., 250. The result is, the judgment of the Circuit Judge is reversed, and judgment will be entered here in favor of the plaintiff, for the possession of the wagon and harness.