PER CURIAM.
The judgment should be affirmed, with costs, on the decision of the referee.
INGRAHAM, J.
I am unable to concur in the affirmance of this judgment. The mortgage by the West India Company to the plaintiff recites that the mortgagor is the owner of “a certain grant and concession for the purchase, maintenance, and operation .of the existing railways in the island of Jamaica, and for the construction, maintenance, and operation of certain extensions thereto, and of other rights, powers, privileges, franchises, and liberties” thereto appertaining, and that for the purpose of carrying out the said objects of its formation, and for the full enjoyment of such grant and concession, and for the purpose of exercising all the rights, powers, privileges, and franchises, and liberties contained in the said grant and concession the mortgagor was desirous of borrowing the sum of $1,000,000, to be secured by a first mortgage or deed of trust given by the said mortgagor to the plaintiff “upon all its said franchises and concessions, and upon all other property, real and personal, rights, privileges, franchises, and liberties so as aforesaid acquired by it, or hereafter to be acquired by it, or to which it shall be lawfully entitled in conformity with the provisions of the said the Jamaica Railway Company’s law”; and of conveying to the plaintiff, to secure the payment of the sum of money mentioned, “all the grants and concessions for the purchase, maintenance, and operation of the existing railroads in the island of Jamaica, and for the construction, maintenance, and operations of certain extensions thereto, * * * and all railways, rights of way, leaseholds, leases, agreements, and contracts now owned or hereafter to be acquired or owned by said party of the first part by virtue of said concessions, when and as the same shall be so acquired and owned; and also the common capital stock of the Jamaica Railway Company, of the par value of one million pounds sterling, a corporation to be organized and formed under and in pursuance of the provisions of said act of the legislative council of [873]*873Jamaica, known as the ‘Jamaica Railway Company’s Law of 1889’ (a, copy of which said act is hereto annexed, marked ‘Schedule B’), as the said common capital stock shall be received by the party of the first part pursuant to said act; and also all other property, or rights of property, real, personal, or mixed, now held and acquired, or which the party of the first part may hereafter hold, acquire, or be entitled to, in, for, upon, by reason of, or in connection with the purchase, construction, maintenance, or operation of said railway, or under or in pursuance of the provisions of said act, or any of the grants, concessions, rights, privileges, franchises, or liberties thereby conferred.” When this mortgage was executed, the mortgagor held a concession for the construction of a railroad in the island of Jamaica, by the terms of which, upon the construction of said road, it would become entitled to the shares of stock and the second mortgage bonds, the right to which is the subject of controversy in this action. This right arose because of the ownership of this concession under the government of the island of Jamaica. A transfer of the concession involved a transfer of the right to receive these stocks and bonds, and by the mortgage of the concession, with the stock and bonds when received, there was acquired by the plaintiff a lien upon the concession and the incidents or property which would flow from it. And thus, I think, the mortgage, as executed, conveyed to the mortgagee, not an agreement to give a lien upon future-acquired property, but a present lien on this concession and on the right to receive the stocks and bonds, which, under the concession and the Jamaica Railway Company’s law, were to be executed and delivered to the mortgagor. The mortgage or pledge of the concession gave to the mortgagee a specific lien upon the stock and bonds, to which the mortgagor became entitled, under the concession, as soon as the mortgagor became entitled to such stock and bonds. Thus, when these stocks and bonds were delivered to the mortgagor, they became, in his hands, subject to the mortgage, and the plaintiff’s lien upon them became complete. In my view, it was not an agreement to give a mortgage upon these securities when received, but a lien upon the right to receive them was created by the mortgage of the concession, and that lien followed that right until the right was consummated by the delivery of the securities to the mortgagor; and the plaintiff had the right to resort to a court of equity to enforce that lien in the hands of whomsoever those securities would be when the obligations to secure which the mortgage was given became due.
By the third clause of the mortgage provision was made for a sale of the property covered thereby, with the consent of the plaintiff, but it was provided that in no case should any such sale “or any other disposition of said property be made without the express written assent thereto of the trustee [plaintiff], evidenced by said trustee joining in every such sale, conveyance, or transfer.” It was then provided that, “until default shall be made in the payment of the principal or interest of the bonds hereby secured, or some of them, * * * and until the failure and omission on the part of the company to keep and perform the covenants by this indenture undertaken and agreed on its part to be kept and performed, or [874]*874some of them, the company shall be suffered and permitted to hold, possess, control, manage, operate, and enjoy all the hereinbefore described property, real and personal, grants, concessions, rights, powers, franchises, and liberties, with the appurtenances thereunto belonging, and to receive and use the income, rents, issues, profits, and emoluments thereof in the same manner and to the same extent and effect as if this deed had not been made.” Taking these provisions together, I can see no escape from the conclusion that the-right of the mortgagor to dispose of this property, or make any sale or transfer of it, depended upon the written assent of the trustee; and, in the absence of such a consent, the property was to remain in the possession of the mortgagor, subject to the lien of the mortgage, until the payment by the mortgagor of the obligations to secure which the mortgage was given. The mortgagor received the stock, and was entitled to receive the second mortgage bonds; but the right accrued to it under the concession upon which the plaintiff had a lien, the possession of which the mortgagor was to retain so long as the covenants and conditions of the mortgage were fulfilled. Such stock and bonds became subject to the lien of the mortgage when received by the mortgagor, as the right to receive such stock and bonds had been expressly mortgaged to the plaintiff. I take it that any transfer of this concession or right to receive these stocks and bonds by the mortgagor to a third party, whether for a valuable consideration or not, would have been subject to the right of the plaintiff under this mortgage; and when the mortgagor had received these stocks and bonds by virtue of the concession, the transfer of the stock and bonds to third parties would have been as much subject to the plaintiff’s mortgage as would a transfer of the right to receive the stock and bonds if it had been transferred before their receipt. Thus, I think the transfer of these stocks and bonds to the defendant the Manhattan Trust Company under the agreement of September 3, 1896, was subject to the prior lien in favor of the plaintiff.
This agreement with the Manhattan Trust Company was dated September 3, 1896.
Free access — add to your briefcase to read the full text and ask questions with AI
PER CURIAM.
The judgment should be affirmed, with costs, on the decision of the referee.
INGRAHAM, J.
I am unable to concur in the affirmance of this judgment. The mortgage by the West India Company to the plaintiff recites that the mortgagor is the owner of “a certain grant and concession for the purchase, maintenance, and operation .of the existing railways in the island of Jamaica, and for the construction, maintenance, and operation of certain extensions thereto, and of other rights, powers, privileges, franchises, and liberties” thereto appertaining, and that for the purpose of carrying out the said objects of its formation, and for the full enjoyment of such grant and concession, and for the purpose of exercising all the rights, powers, privileges, and franchises, and liberties contained in the said grant and concession the mortgagor was desirous of borrowing the sum of $1,000,000, to be secured by a first mortgage or deed of trust given by the said mortgagor to the plaintiff “upon all its said franchises and concessions, and upon all other property, real and personal, rights, privileges, franchises, and liberties so as aforesaid acquired by it, or hereafter to be acquired by it, or to which it shall be lawfully entitled in conformity with the provisions of the said the Jamaica Railway Company’s law”; and of conveying to the plaintiff, to secure the payment of the sum of money mentioned, “all the grants and concessions for the purchase, maintenance, and operation of the existing railroads in the island of Jamaica, and for the construction, maintenance, and operations of certain extensions thereto, * * * and all railways, rights of way, leaseholds, leases, agreements, and contracts now owned or hereafter to be acquired or owned by said party of the first part by virtue of said concessions, when and as the same shall be so acquired and owned; and also the common capital stock of the Jamaica Railway Company, of the par value of one million pounds sterling, a corporation to be organized and formed under and in pursuance of the provisions of said act of the legislative council of [873]*873Jamaica, known as the ‘Jamaica Railway Company’s Law of 1889’ (a, copy of which said act is hereto annexed, marked ‘Schedule B’), as the said common capital stock shall be received by the party of the first part pursuant to said act; and also all other property, or rights of property, real, personal, or mixed, now held and acquired, or which the party of the first part may hereafter hold, acquire, or be entitled to, in, for, upon, by reason of, or in connection with the purchase, construction, maintenance, or operation of said railway, or under or in pursuance of the provisions of said act, or any of the grants, concessions, rights, privileges, franchises, or liberties thereby conferred.” When this mortgage was executed, the mortgagor held a concession for the construction of a railroad in the island of Jamaica, by the terms of which, upon the construction of said road, it would become entitled to the shares of stock and the second mortgage bonds, the right to which is the subject of controversy in this action. This right arose because of the ownership of this concession under the government of the island of Jamaica. A transfer of the concession involved a transfer of the right to receive these stocks and bonds, and by the mortgage of the concession, with the stock and bonds when received, there was acquired by the plaintiff a lien upon the concession and the incidents or property which would flow from it. And thus, I think, the mortgage, as executed, conveyed to the mortgagee, not an agreement to give a lien upon future-acquired property, but a present lien on this concession and on the right to receive the stocks and bonds, which, under the concession and the Jamaica Railway Company’s law, were to be executed and delivered to the mortgagor. The mortgage or pledge of the concession gave to the mortgagee a specific lien upon the stock and bonds, to which the mortgagor became entitled, under the concession, as soon as the mortgagor became entitled to such stock and bonds. Thus, when these stocks and bonds were delivered to the mortgagor, they became, in his hands, subject to the mortgage, and the plaintiff’s lien upon them became complete. In my view, it was not an agreement to give a mortgage upon these securities when received, but a lien upon the right to receive them was created by the mortgage of the concession, and that lien followed that right until the right was consummated by the delivery of the securities to the mortgagor; and the plaintiff had the right to resort to a court of equity to enforce that lien in the hands of whomsoever those securities would be when the obligations to secure which the mortgage was given became due.
By the third clause of the mortgage provision was made for a sale of the property covered thereby, with the consent of the plaintiff, but it was provided that in no case should any such sale “or any other disposition of said property be made without the express written assent thereto of the trustee [plaintiff], evidenced by said trustee joining in every such sale, conveyance, or transfer.” It was then provided that, “until default shall be made in the payment of the principal or interest of the bonds hereby secured, or some of them, * * * and until the failure and omission on the part of the company to keep and perform the covenants by this indenture undertaken and agreed on its part to be kept and performed, or [874]*874some of them, the company shall be suffered and permitted to hold, possess, control, manage, operate, and enjoy all the hereinbefore described property, real and personal, grants, concessions, rights, powers, franchises, and liberties, with the appurtenances thereunto belonging, and to receive and use the income, rents, issues, profits, and emoluments thereof in the same manner and to the same extent and effect as if this deed had not been made.” Taking these provisions together, I can see no escape from the conclusion that the-right of the mortgagor to dispose of this property, or make any sale or transfer of it, depended upon the written assent of the trustee; and, in the absence of such a consent, the property was to remain in the possession of the mortgagor, subject to the lien of the mortgage, until the payment by the mortgagor of the obligations to secure which the mortgage was given. The mortgagor received the stock, and was entitled to receive the second mortgage bonds; but the right accrued to it under the concession upon which the plaintiff had a lien, the possession of which the mortgagor was to retain so long as the covenants and conditions of the mortgage were fulfilled. Such stock and bonds became subject to the lien of the mortgage when received by the mortgagor, as the right to receive such stock and bonds had been expressly mortgaged to the plaintiff. I take it that any transfer of this concession or right to receive these stocks and bonds by the mortgagor to a third party, whether for a valuable consideration or not, would have been subject to the right of the plaintiff under this mortgage; and when the mortgagor had received these stocks and bonds by virtue of the concession, the transfer of the stock and bonds to third parties would have been as much subject to the plaintiff’s mortgage as would a transfer of the right to receive the stock and bonds if it had been transferred before their receipt. Thus, I think the transfer of these stocks and bonds to the defendant the Manhattan Trust Company under the agreement of September 3, 1896, was subject to the prior lien in favor of the plaintiff.
This agreement with the Manhattan Trust Company was dated September 3, 1896. The notes were issued and the money paid by Thomas on September 18th, by the Chase National Bank on September 17th, and by the Manhattan Trust Company on September 21st. At that time none of the stocks and bonds had been actually delivered to the Manhattan Trust Company. All that the trust company had was an agreement by this mortgagor to deliver certain shares of stock and bonds to the trust company, with the delivery of the certificates and a formal transfer in writing of such stocks and bonds. The legal title .to these stocks and bonds was still in the mortgagor. On the 26th of October 1896, after these notes had been actually discounted and the money paid for them, the legal title to the shares of stock was transferred to the Manhattan Trust Company, and certificates thereof in its name delivered to it, “and the said £100,000 second mortgage bonds were surrendered by the colonial secretary of Jamaica, and were made payable to bearer, and delivered to the defendant the Manhattan Trust Company.” The referee found that by the law of the colony of [875]*875Jamaica the legal title to the capital stock of the Jamaica Railway Company, as between the West India Improvement Company and the Manhattan Trust Company, could pass only by a deed of transfer, and did not pass by the delivery of certificates standing in the name of the West India Improvement Company, with a transfer thereon in blank, and indorsed thereon, and signed by it. None of those who had advanced money upon the faith of this transfer to the Manhattan Trust Company actually advanced such money upon the faith of the actual transfer of the legal title of the stock and bonds to the trust company, but entirely upon the promise of the mortgagor to so transfer such stock and bonds. It seems to me that the title that the Manhattan Trust Company obtained to this stock and the bonds was subordinate to and subject to the lien of the plaintiff, which had attached, and which the plaintiff is entitled to enforce; and that, “as between different assignees of a chose in action by express assignment from the same person, the one prior in point of time will be protected, although he has given no notice of such assignment to either the subsequent assignee or the debtor.” Fortunato v. Patten, 147 N. Y. 283, 41 N. E. 572; Fairbanks v. Sargent, 104 N. Y. 108, 9 N. E. 870; Williams v. Ingersoll, 89 N. Y. 508. It is for these reasons that I think the authorities relied on by the learned referee to sustain his conclusion that this mortgage is merely a right in equity to have this after-acquired property supplied as security to the mortgage do not apply, and that the principle stated by the supreme court of the United States in the case of Judson v. Corcoran, 17 How. 612, 15 L. Ed. 331, is not applicable, as the plaintiff’s lien upon this stock and bonds had become absolute, and could only be devested by a release of the mortgagee, or the payment of the obligations to secure which the mortgage was given.
As my associates do not agree with me in my view of the fights of these parties, but concur with that of the referee for the reasons given by him, this statement of the reasons of my dissent is sufficient.