Greenaway v. Fuller

Campbell, J.

Plaintiffs sued in trover for the conversion of an organ mortgaged to them by one Norton. Defendant claimed by a subsequent right acquired from Norton. The ■ court below instructed the jury that plaintiff’s mortgage was. void as against Fuller, because given on property not then owned by Norton.

*558 The facte were in brief that on the 16th of April, 1879, in the morning, there were four organs, including the one in question, at the express office in Brighton consigned to Norton by the vendors, to be paid for on delivery to him. Norton borrowed the mortgage money from plaintiffs to pay for the organs and their freight, and on such payment the organs were received by him from the express agent that same day.

We do not think this can be regarded as in any sense a mortgage on after-acquired property. The mortgage described the organs, and they were subject to Norton’s order whenever he chose to pay for them. The mortgage at once attached to his interest, which became released from conditions as soon as paid for. Nothing further remained to bring the instruments within the express terms of the mortgage. It was a present mortgage in terms and in effect, and the payment merely completed the operation of its language, and removed what was really no more as to the rights of plaintiffs than an encumbrance.

Treating it as a present mortgage, it was properly filed and became notice, so that the other defences do not seem to have any importance. The charge was wrong, and the plaintiffs should have been allowed to go to the jury with their case.

Judgment must he reversed with costs and a new trial granted.

The other Justices concurred.