8 Mich. 66 | Mich. | 1860
The whole of this case depends upon the nature of the instrument, executed by Barstow & Nash, to Hall & Page, which was held by the court below to be a valid chattel mortgage.
The instrument bears a close resemblance to the one considered by the Supreme Court of the United States, in the case of Hunt v. Rousmanier, 8 Wheat. 174,'*'and again in Hunt v. Rousmanier’s Adm. 1 Peters, 1. It was decided in the latter case, that even in equity, an instrument must stand as written, if deliberately adopted by the parties, although they mistook its legal intent; the mistake being one of law merely; and especially so when the rights of
It is not a pledge, because there was no possession given; and it is not a mortgage, for it does not purport to change, in any way, the title to the property, which was to remain throughout in the makers. It is nothing but a naked power, not coupled with any present interest, and which could never operate to give Hall & Page any rights in the property itself, until reduced to possession. The levy having ■ been made before this, and while the entire title was in the attachment debtors, must prevail over it.
The court below erred in holding the instrument valid as a mortgage, and the judgment must therefore be reversed, and a new trial granted.