Le Grand, C. J.,
delivered the opinion of this court.
This is an action of trespass vi et armis, and involves a question of very great importance. It arises in the following manner: — one Joseph D. Worley of Baltimore city, purchased of Charles Rogers, the appellee, a stock of goods for $5314.80, and on the same day executed a mortgage bill of sale on said stock to secure payment of the purchase money in ten days. The mortgage, in addition to the usual provisions, contained' also the following: “ together with all renewals and substitutions for the same, or any part or parts thereof: the object of this conveyance being to include, not only the articles at present in said stores, but whatever may be at any time therein, in the course of said Worley’s business.”
Worley remained in possession until July 22nd, 1853, when he applied for the benefit of the insolvent laws, the mortgage to Rogers remaining due and unpaid. On the 8th of July 1854, the appellant, Hamilton, having a judgment against Worley, caused a Ji. fa. to be levied upon the stock of goods then in Worley’s possession; and Robinson, the other appellant, by virtue of thisfi.fa., as constable, seized and removed a portion of said stock. On the 18th of July, the appellee instituted his action of trespass vi et armis against the appellants to recover damages for the seizure of said goods.
Worley was examined as a witness, and on cross-examination testified — when speaking of the goods in the store at the time of the seizure by Robinson — “ that all the goods were manufactured and placed in the store within six months previous to the time on which they were so taken; that the most of the materials from which they were manufactured were purchased by him after the making of said deed; that the materials thus manufactured were nearly all purchased with the proceeds of the sales of goods in the store at the time of making said deed.” It was also proved by another witness, named Dempsey, “that the said goods so levied on were all manufactured within six months previous to the making of the [315]*315levy;; that, the materials from which they were made, except the bucides, were purchased since the 6th of June 1851.”
The important and practical question suggested by this state of case is, does such a clause, in a mortgage of goods and chattels, as that recited, give, at law, a right of action to the mortgagee against any one interfering with the goods acquired by the mortgagor subsequently to the execution of the mortgage ? The question was considered but not decided by the Court of Appeals in Hudson vs. Warner & Vance, 2 Harr. & Gill, 428, and in Preston & Hepburn vs. Leighton, 6 Md. Rep., 98. It is evident, however, from his opinion, to be found in the record, that the learned judge who decided it, below, in this case, gave to it the attention which its importance demanded. Differing from him in opinion, it is proper we should indicate the grounds of that difference, as well by a reference to the authorities on which he relied as to others.
It is laid down in Comyn’s Digest, tit. Grant D, that “a. man cannot grant a thing which'he has not.” So in Bacon’s Abr., tit. Grant D, ica man cannot grant all the wool that shall grow upon his sheep that he shall buy afterwards, for there he hath it not actually or potentially.” The thing sold must have an actual or potential existence. 2 Kent, 468.
And Story in 2 Equity Jurisprudence, section 1040, says, “ to make an assignment valid at law, the thing Avhich is the subject of it, must have an actual or potential existence at the time of the grant or assignment.” The learned judge concedes that the cases in 4th Metcalf, 306; 10th Metcalf, 488; 2 Cushing, 300; 7th Adolphus & Ellis N. S., 850; 1st Manning, Granger & Scott, 385, assert this to be the common law principle, but they do not, in his opinion, apply the principle to property acquired by the mortgagor with the consent of the mortgagee, and in conformity with the original agreement by a re-hrvestment of the proceeds of the original property.
It should be observed, that there is not any evidence in the record that the proceeds of the property in the store, at the date of the mortgage, Avere invested in the goods levied upon by the appellants, by the mortgagor Avith the aAxnved object of benefiffing the mortgagee.
[316]*316This fact, in a certain aspect of the case in view of some of the decisions, might have some influence. The rights of the appellee depend entirely upon the language of his deed.
It is suggested, that two of the judges in the case of Tapfield vs. Hillman, et al., 6 Manning & Granger, 245, intimate clearly, that had the covenants of the deed been such as those in the present case, and such as they supposed had been designed by the grantor, they should have been sustained. That was the case of an assignment, by way of mortgage, (to secure the payment of a sum of money loaned,) from a lessee to his lessor, of furniture and stock in trade, in, about, upon and belonging to an inn, with a power, upon non-payment, to enter into, possess, hold and enjoy, the inn for the residue of the .assignor’s term therein, and “ to take, possess, hold and enjoy, all the goods, chattels, effects and premises.” On the day before the expiration of the plaintiff’s tenancy the mortgagees entered upon the premises, under color of the mortgage deed,, and seized the whole of the effects, including stock in trade and other property which were not on the premises at the date of the deed.
As we understand the language of the judges, their purpose in the particular case was to interpret the words actually used in the mortgage, and in the view they had of it, it was wholly unimportant to inquire whether or not, at law, goods - subsequently acquired by the mortgagor could be made hable by any words which might have been inserted in the deed, it is true, Tindall, Ch. J., says, that “if the intention of the parties was, that the security should extend to subsequently acquired property, that intention ought to have been clearly expressed;” and also, “ that it would have been veiy easy to have so framed the power of entry as to make it extend to all effects upon the premises at the time that such-power should be enforced, had such been the intention of the parties.” The court were of the opinion that the language of the deed only covered the effects upon the premises at the time of its date, and it was not therefore required of them to deal with the question involved in die case before us. Indeed the counsel engaged did not press it, the onJy allusion in the argument to [317]*317it was, that “it was far from being clear, that an assignment can be made to comprise property which is not in existence at ihe time.” “But that point” did “not arise,” for the deed did not profess, neither did “ it convey the slightest intimation, that the parties meant to include property which might be subsequently acquired.” Looking at the facts of the case as presented by the report, we incline to ascribe the language which we have quoted, from Tindall, Ch. J., to a desire to show that the words of the deed did not, nor was it intended they should, cover subsequently acquired property. If this were so there was no necessity to inquire into the law applicable to the other question. The case was decided in 1843.
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Le Grand, C. J.,
delivered the opinion of this court.
This is an action of trespass vi et armis, and involves a question of very great importance. It arises in the following manner: — one Joseph D. Worley of Baltimore city, purchased of Charles Rogers, the appellee, a stock of goods for $5314.80, and on the same day executed a mortgage bill of sale on said stock to secure payment of the purchase money in ten days. The mortgage, in addition to the usual provisions, contained' also the following: “ together with all renewals and substitutions for the same, or any part or parts thereof: the object of this conveyance being to include, not only the articles at present in said stores, but whatever may be at any time therein, in the course of said Worley’s business.”
Worley remained in possession until July 22nd, 1853, when he applied for the benefit of the insolvent laws, the mortgage to Rogers remaining due and unpaid. On the 8th of July 1854, the appellant, Hamilton, having a judgment against Worley, caused a Ji. fa. to be levied upon the stock of goods then in Worley’s possession; and Robinson, the other appellant, by virtue of thisfi.fa., as constable, seized and removed a portion of said stock. On the 18th of July, the appellee instituted his action of trespass vi et armis against the appellants to recover damages for the seizure of said goods.
Worley was examined as a witness, and on cross-examination testified — when speaking of the goods in the store at the time of the seizure by Robinson — “ that all the goods were manufactured and placed in the store within six months previous to the time on which they were so taken; that the most of the materials from which they were manufactured were purchased by him after the making of said deed; that the materials thus manufactured were nearly all purchased with the proceeds of the sales of goods in the store at the time of making said deed.” It was also proved by another witness, named Dempsey, “that the said goods so levied on were all manufactured within six months previous to the making of the [315]*315levy;; that, the materials from which they were made, except the bucides, were purchased since the 6th of June 1851.”
The important and practical question suggested by this state of case is, does such a clause, in a mortgage of goods and chattels, as that recited, give, at law, a right of action to the mortgagee against any one interfering with the goods acquired by the mortgagor subsequently to the execution of the mortgage ? The question was considered but not decided by the Court of Appeals in Hudson vs. Warner & Vance, 2 Harr. & Gill, 428, and in Preston & Hepburn vs. Leighton, 6 Md. Rep., 98. It is evident, however, from his opinion, to be found in the record, that the learned judge who decided it, below, in this case, gave to it the attention which its importance demanded. Differing from him in opinion, it is proper we should indicate the grounds of that difference, as well by a reference to the authorities on which he relied as to others.
It is laid down in Comyn’s Digest, tit. Grant D, that “a. man cannot grant a thing which'he has not.” So in Bacon’s Abr., tit. Grant D, ica man cannot grant all the wool that shall grow upon his sheep that he shall buy afterwards, for there he hath it not actually or potentially.” The thing sold must have an actual or potential existence. 2 Kent, 468.
And Story in 2 Equity Jurisprudence, section 1040, says, “ to make an assignment valid at law, the thing Avhich is the subject of it, must have an actual or potential existence at the time of the grant or assignment.” The learned judge concedes that the cases in 4th Metcalf, 306; 10th Metcalf, 488; 2 Cushing, 300; 7th Adolphus & Ellis N. S., 850; 1st Manning, Granger & Scott, 385, assert this to be the common law principle, but they do not, in his opinion, apply the principle to property acquired by the mortgagor with the consent of the mortgagee, and in conformity with the original agreement by a re-hrvestment of the proceeds of the original property.
It should be observed, that there is not any evidence in the record that the proceeds of the property in the store, at the date of the mortgage, Avere invested in the goods levied upon by the appellants, by the mortgagor Avith the aAxnved object of benefiffing the mortgagee.
[316]*316This fact, in a certain aspect of the case in view of some of the decisions, might have some influence. The rights of the appellee depend entirely upon the language of his deed.
It is suggested, that two of the judges in the case of Tapfield vs. Hillman, et al., 6 Manning & Granger, 245, intimate clearly, that had the covenants of the deed been such as those in the present case, and such as they supposed had been designed by the grantor, they should have been sustained. That was the case of an assignment, by way of mortgage, (to secure the payment of a sum of money loaned,) from a lessee to his lessor, of furniture and stock in trade, in, about, upon and belonging to an inn, with a power, upon non-payment, to enter into, possess, hold and enjoy, the inn for the residue of the .assignor’s term therein, and “ to take, possess, hold and enjoy, all the goods, chattels, effects and premises.” On the day before the expiration of the plaintiff’s tenancy the mortgagees entered upon the premises, under color of the mortgage deed,, and seized the whole of the effects, including stock in trade and other property which were not on the premises at the date of the deed.
As we understand the language of the judges, their purpose in the particular case was to interpret the words actually used in the mortgage, and in the view they had of it, it was wholly unimportant to inquire whether or not, at law, goods - subsequently acquired by the mortgagor could be made hable by any words which might have been inserted in the deed, it is true, Tindall, Ch. J., says, that “if the intention of the parties was, that the security should extend to subsequently acquired property, that intention ought to have been clearly expressed;” and also, “ that it would have been veiy easy to have so framed the power of entry as to make it extend to all effects upon the premises at the time that such-power should be enforced, had such been the intention of the parties.” The court were of the opinion that the language of the deed only covered the effects upon the premises at the time of its date, and it was not therefore required of them to deal with the question involved in die case before us. Indeed the counsel engaged did not press it, the onJy allusion in the argument to [317]*317it was, that “it was far from being clear, that an assignment can be made to comprise property which is not in existence at ihe time.” “But that point” did “not arise,” for the deed did not profess, neither did “ it convey the slightest intimation, that the parties meant to include property which might be subsequently acquired.” Looking at the facts of the case as presented by the report, we incline to ascribe the language which we have quoted, from Tindall, Ch. J., to a desire to show that the words of the deed did not, nor was it intended they should, cover subsequently acquired property. If this were so there was no necessity to inquire into the law applicable to the other question. The case was decided in 1843. At Hilary term 1845, the case of Lunn vs. Thornton, 1 Manning, Granger Scott, 379, was decided. In the course of the argument the expressions we have cited from the case of Tapfield vs. Hillman, were declared to be extra-judicial. The deed in Hum vs. Thornton not only covered the effects on the premises at the time of its execution, hut also all “ which should al anytime thereafter remain and he” thereon. The case was very fully and ably argued by counsel, and decided by Tindall, Oh. J., after a thorough review of the cases and principles applicable to it. He distinctly holds, that subsequently acquired goods are not covered by such a deed. He thus plainly states the facts and die question arising out, of them:— “the goods,” says he, “in dispute, were not goods c remaining and being on the premises’ at the time of the execution of the deed of bargain and sale, but were goods which had become the property of the plaintiff, and had also been brought upon the premises subsequently to tire execution of that instrument, anti were remaining thereon at the time of the seizure under the bill of sale. Under these circumstances, it was contended by the defendant’s counsel, that the hill of sale covered these goods as being goods remaining and being in or upon tbe dwelling-house at the time of the seizure; and the question is, whether fbe property in these goods passed under this bill of sale. It is not a question whether a deed might not have been so framed as to have given the defendant a power of seizing the future personal goods of the plaintiff as they should [318]*318be acquired by him, and brought on the premises in satisfaction of the debt; but the question before us arises on a plea which puts in issue the property in the goods and nothing else; and it amounts to this, whether, by law, a deed of bargain sale of goods can pass the property in goods which are not in existence, or at all events which are not belonging to the grantor at the time of executing the deed.” This he resolves in the negative, especially where nothing has been done by the grantor other than the acquisition of goods. He quotes from Bacon’s Maxims, Reg. 14: “Licet dispositio de interesse futuro sit inutilis, tamen potest fieri declaratio prcecedens, quce sortiatur effectwm, interveniente novo actuf’ (although the grant of a future interest is invalid, yet a declaration precedent may be made which will taire effect on the intervention of some new act;) and then says, that Lord Bacon adopts the first branch of the maxim, namely, that a disposition of after-acquired property is altogether inoperative, a proposition of law that is to be considered as beyond dispute; and only labors to establish the second branch of the maxim, namely, that such disposition may be considered as a declaration precedent, which derives its effect from some new act of the party after die property is acquired. The defendant contended, that the facts of the case brought it within the exception in Lord Bacon’s rule; that the bringing of the goods on the premises of the plaintiff, where they were seized, was the new act done by the plaintiff, which gave the declaration contained in the previous bill of sale, its effect. In reply to this view the court say, “ the new act which Bacon relies upon appears, in all the instances which he puts, to be an act done by the grantor for.the avowed object and with the view of carrying the former grant or disposition into effect.” He quotes Lord Bacon thus: “ (.here must be some new act or conveyance, to give life and vigor to the declaration precedent;” and then adds, “ which evidently imports more than the simple acquisition of the property at a subsequent time, which, if sufficient, would render the rule itself altogether ¡imperative; but points at some new act to be done by the grantor in furtherance of the original disposition. ’ ’ After this decision, and that of Gale vs. Burnell, 7 Adolphus [319]*319& Ellis, N. S., 862, which is in strict conformity with it, the dictum in the case of Tapfield vs. Hillman, if supposed to be in conflict, ought, on the point now before us, to have but little influence.
It is supposed, however, that Justice Story, in two cases to be found in 2 Story’s Rep., that of Fletcher vs. Morey, at 555, and that of Mitchell vs. Winslow, at 630, intimates, if he does not in fact distinctly hold, that such deeds are good and valid both at law and in equity. We do not so understand him. Both those cases were in equity, and the whole reasoning of the judge was to show, that whatever might be the rule at law, nevertheless equity will attach its jurisdiction wherever the parties, by their contract, intend to create a positive lien or charge, either upon real or upon personal property, whether then owned by the assignor or contractor, or not; or if personal property, whether it is in esse or not; that it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto against the latter, and all persons asserting a claim thereto under him, either voluntarily or with notice, or in bankruptcy. With this doctrine we have nothing to do in the present instance. This is a case at law, and if we correctly comprehend the distinguished jurist, he plainly announces his concurrence with the views we have already expressed. At page 638 of the report of the case of Mitchell vs. Winslow, et al., 2 Story’s Rep., he says, “it may be admitted to be true, what, indeed, seems to be the result of the authorities cited at the bar, as well as of others equally entitled to respect, that to make a grant or assignment valid at law, the thing which is the subject of it must have an existence, actual or potential, at the time of such grant or assignment, and that a mere possibility is not assignable.” Again, in drawing the distinction between law and equity he remarks, “ courts of equity do not, like courts of Jaw, confine themselves to the giving of effect to assignments of rights and interests, which are absolutely fixed in esse. On the contrary, they support assignments, not only of choses in action, but of contingent interests and expectancies, and also of things which have no present actual or potential existence, but rest in mere possibility only.”
[320]*320The case of Macomber vs. Parker, 14 Pickering 497, was decided on a principle hi no manner involved in this case. The plaintiffs there were the owners of the yard and clay of which the brides were made. So soon as the bricks were manufactured they were placed in the kilns of the plaintiffs, in other words, delivered to them, and in pursuance of the terms of the contract between the parties, eo instanti, their lien attached. The court say: “ Now we hold it to be clear, that the plaintiffs had a right to retain Evans’ part of the bricks under this contract. It was expressly agreed by Evans that they should have such a right. * * * # Every brick, as it was formed, may well be considered as delivered to the plaintiffs in part execution of the contract.”
Looking to the maxims of the common law and the decisions of courts, both in this country and in England, we are clearly of the opinion, that this action cannot be maintained for the taking of the subsequently acquired goods. If, for the convenience of the community, or for the benefit of trade and commerce, it be deemed important that the rules of law in this particular should be altered, the legislature is the proper branch of the government to which application should be made for that purpose. As the law now is, there can scarcely be a doubt that in some instances loss and injury are suffered by those who are least deserving of it. Courts cannot prevent it, for the rules of law are, and have been from the earliest times, inexorable.
The views we have expressed, it is supposed, are apparently in conflict with some of those announced in the opinion of the court in the case of Hannon’s Exc’rs vs. The State, use of Robey, 9 Gill, 440. That case may be maintained without disturbing the doctrine we have laid down. The part of the opinion which relates to the question supposed to be involved in this case is very brief indeed; but it is not unreasonable to suppose, that it was decided on a principle of analogy to the doctrine of estoppel, which makes the act of the ancestor conclusive upon the heir. We do not consider the case as going any farther, or as intended to overrule the decisions to which we have-referred.
The second prayer was well rejected, because there was [321]*321no evidence from which the jury could have found the fact» averred as the ground-work of that instruction. More than three Jrears had elapsed between the date of the deed and the time of Worley’s application; and he states expressly, — which is all the evidence on the question, — that he then expected to-pay all his debts from his business, which was large and profitable, and that he did pay a large portion of them.
For the reasons already stated, we think the court erred in-rejecting the third, fourth and fifth prayers of the defendants.It was essentia] to the right of recovery of the plaintiff, that he' should prove the goods seized were on the premises at the time of the execution of the mortgage. The only evidence applicable to this view of the case relates to the ubuckles” used in the manufacture of tranks, &c. On the proof in this record, the recovery of the plaintiff would be limited to their value; and to enable him to recover even to that extent, it was incumbent upon him to show that they were known to the defendants to have been on the premises at the date of the mortgage, or were, as such, pointed out by him to the officer. Shumway, et al., vs. Rutter, 8 Pick., 443. No such evidence was offered at the' trial. Besides, if the property of the plaintiff was commingled with that of Worley, it must be taken as having been done with his permission, for he allowed the goods to remain in the possession of Worley and under his control, with the knowledge that it was his purpose to use it in the manufacture of other articles.
The officer was bound to take the property of the debtor, and if, by the permissive act of the mortgagee, the property of the latter was so intermixed with that of Worley as to prevent separation or identification, the rights of third parties ought not to be affected thereby, whatever might be the influence of such commingling as between the original owners.
In what we have said, we are, of course, to be understood as speaking only of cases similar to the one now before us.. Where personal property, animate in its nature — such as a female slavc-^-is disposed of, the fate of the mother determines that of the chile] — -partus seqmtur venirem.
[322]*322These views dispose of the case, and it is not, therefore, necessary to consider the sufficiency of the releases offered in evidence.
Judgment reversed and procedendo refused.