Chesley v. Josselyn

73 Mass. 489

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1856
• Status: Published

Opinion

Bigelow, J.

A mortgage of chattels cannot convey property of which the mortgagor is not the owner at the time of the conveyance. Whatever may be the agreement between the parties, the mortgage cannot bind property subsequently acquired, without some further act of assurance or ratification. Jones v. Richardson, 10 Met. 481. Barnard v. Eaton, 2 Cush. 303.

The bill of sale, under which the plaintiff claims, does not describe all the property included in it as subject to the mortgage to the defendant, nor in any way indicate what portion is covered by the mortgage; but merely contains covenants of title and good right to sell, subject to the mortgage, leaving the mortgage to apply to such portion of the property as was legally conveyed by it. Nor is there any evidence that the defendant, when he entered under his mortgage, relied on any admission in the bill of sale, or even knew that the sale had been made. There is no ground therefore for holding that the plaintiff is estopped to claim the property acquired by the mortgagor after the mortgage to the defendant. Exceptions sustained.