The opinion of the Court was delivered by
McIver, A. J.
This was an action brought in a Trial Justice’s Court to recover the possession of certain personal property. The Trial Justice rendered judgment for the plaintiff, and upon appeal to the Circuit Court his judgment was sustained by that Court.
The-facts of the ease, as we learn them from the statement made by the respondent and conceded by the appellant, were as follows:
Moore cultivated land of Byrum in the year 1875, and at the end of the year, having fallen in debt to him, Byrum refused to permit Moore to remove the portion of the crop to which he was *460entitled unless he would secure his debt by executing the note and agreement hereinafter mentioned, whereupon Moore, on the 4th of December, 1875, executed his note under seal, whereby he promised to pay the defendant, Byrum, on or before the 1st of November next after the date of said note, thirty-two 50 100 dollars, and, to secure the payment of such note, executed a paper of which the following is a copy:
“Know all men by these presents, That I, C. A. Moore, * * * do hereby give to Joseph Byrum, Jr., a mortgage on all my cotton, corn and wheat that I may raise during the year 1876, to secure the payment of the above note this day given by me; and in default of payment by the 1st of November next, then I authorize the said Byrum to take all the crops raised by me, or any other person he may select so to do.”
The crops mentioned in the foregoing paper were not planted at the time the same was given and were not raised on lands of the appellant. The note not having been paid at maturity, the defendant, Byrum, obtained from the Clerk of the Court of Common Pleas a warrant, under the provisions of the Act entitled “An Act, to secure advances for agricultural purposes,” directed to the defendant, McGukin, as Sheriff, under which he seiz.ed the cotton and other crops of the plaintiff; whereupon this action was commenced to recover possession of the same. At the trial, the defendants abandoned any claim to hold the property under the warrant issued by the Clerk, for the reason, as it would seem from the report of the Trial Justice, that the debt intended to be secured was an antecedent debt and did not arise from advances made at the time or after the execution of the agreement, but claimed that the agreement, although not effectual as an agricultural lien under the statute, was good as a mortgage, and that the taking of the property was justified under the provisions of such paper as a mortgage.
The Trial Justice instructed the jury before whom the case was tried “ that a mortgage on personal property not in being was invalid as a mortgage, and that if they believed from the testimony that the crop was not planted at the time of' the agreement, that then it was wholly invalid as a mortgage ;” and, further, “ that no evidence had been produced the legal effect of which was to estop the plaintiff.”
To all these rulings the defendant excepted. The grounds upon which the Circuit Judge rested his decision are not stated, as he *461simply dismisses the appeal and renders judgment for the plaintiff; from which we must infer that he adopted the rulings of the Trial Justice, and for this reason we have stated them. It would seem, therefore, that the agreement was regarded both by the Circuit Judge and by the Trial Justice as intended by the parties as a mortgage, though the defendants did at one time treat it as if it were also an agricultural lien under the statute. There can be no doubt that a paper, whatever may be its form, will, if intended by the parties as a mortgage, be so regarded by a Court of Equity, ( Walling vs. Akin, McM. Eq., 1,) and we have as little doubt that the parties in this case did intend the paper here in question to be a mortgage, as it is so distinctly called in the body of the paper, and contains a provision, usually found in mortgages of personal property, authorizing the mortgagee, either by himself or by his agent, to seize the property mortgaged upon default in payment of the mortgage debt. The fact that Byrura at one time seemed to regard it as a lien under the statute does not negative this idea, for we know it is frequently the case that papers of this kind are so drawn as to give them both characters. Nor do we think that this can be controlled by the decision in the case of Green vs. Jacobs, (5 S. C., 280,) for two reasons: First. Because that was a case in which the rights of third persons had intervened, while in this case the contest is between the original parties. Second. Because in that case there was no provision in the paper authorizing the mortgagee to take possession of the property mortgaged upon default in payment of the debt, while in this case there is such a provision.
This, it will be remembered, is an action to recover possession of personal property; it is not an action to recover damages for a trespass in unlawfully seizing property in the possession of the plaintiff. But the action, if maintainable at all, must be maintained upon the ground that the property in question belongs to the plaintiff, or that, as against the defendants, he is entitled to the possession of it. If, therefore, the paper under which the defendants seek to protect themselves can be regarded as having the effect of a mortgage, then, clearly, the plaintiff cannot maintain this action. It is argued, however, that this paper cannot be regarded as a mortgage because at the time it was executed the property intended to be mortgaged had neither an actual or a potential existence, inasmuch as it is admitted that the crops had not then been planted and were not afterwards raised on land of appellant which he then. *462held either in his own right or as tenant of another. The authorities cited in respondent’s brief do show that, in order to create a valid mortgage, the thing intended to be mortgaged must be at the time either in actual existence or it must be the prospective yield of something which has then an actual existence. But where there is a mortgage on property to be subsequently acquired, although the mortgage is not valid or effectual at the time when it is given, yet after the property is acquired and is taken into possession under the mortgage by the mortgagee ' the right to the property passes from the mortgagor to the mortgagee. Unquestionably is this so where, as in the case now under consideration, the rights of third persons, either as creditors or purchasers, have not intervened and where the controversy arises between the original parties. As is said in the case of Moody vs. Wright, (13 Metcf., 32,) “ a stipulation that future-acquired property shall be holden as security for some present engagement is an executory agreement of such a character that the creditor with whom it is made may, under it, take the property into his possession when it comes into existence and is the subject of transfer by his debtor and hold it for his security; and whenever he does so take it into his possession, before alienation thereof, such creditor, under his executory agreement, may hold the same.” So in the case of McCraffrey vs. Woodin, (65 N.Y., 459" court="NY" date_filed="1875-06-05" href="https://app.midpage.ai/document/mccaffrey-v--woodin-3605191?utm_source=webapp" opinion_id="3605191">65 N. Y., 459,) reported also in 22 Amer. Rep., 644, it was held that a provision in a lease which amounted to a chattel mortgage on after-acquired property, while it conveyed no present legal title, inasmuch as the property mentioned was not then in existence, was yet a valid license to en;t’er and seize the property as soon as it was acquired or came into existence; and after such entry and seizure the title vested in the mortgagee even at law, and that in equity the lien would attach and bind the property as soon as it was acquired or came into existence, even before it was taken possession of by the mortgagee.
This doctrine was fully recognized in the case of Williams vs. Briggs, (11 R. I., 476,) although the controversy there was not between the original parties, but between the mortgagee and an assignee of the mortgagor. It is true that in this case the decision was in favor of the assignee of the mortgagor, but it was placed upon the ground that the action was brought.at law and not in equity, and that the mortgagee had never taken possession of the property mortgaged. The mortgage was upon the tools, fixtures, *463stock in trade for the manufacture of carriages, and all carriages made or in process of manufacture then in the carriage factory of the mortgagor, and also upon all stock, tools, fixtures and carriages, whether manufactured or in process of manufacture, “that may be hereafter purchased by me to be used in or about my business of buying and selling, making and repairing carriages.” It appeared at the trial that only a small part of the property in controversy was in the possession or ownership of the mortgagor at the time of the making of the mortgage, the larger part of it having been subsequently acquired. D'urfee, C. J., in delivering the opinion of the Court, says (the italics being ours): “The case, therefore, raises the question whether a mortgage of property to be subsequently acquired conveys to the mortgagee a title to such property when acquired which is valid at law as against the mortgagor or his voluntary assignee. * * * We think such a mortgage is ineffectual to transfer the legal title of the property subsequently acquired, unless when acquired possession thereof is given to the mortgagee or taken by him under the mortgage.” This case is cited as presenting, together with that of McCaffrey vs. Woodin, (supra,) a very full collection of the authorities establishing the propositions herein announced. See, also, Frazer & Co. vs. Hilliard, (2 Strob, 309,) where it is said: “ If one sells goods in which he has no property at the time of the sale, and subsequently acquires a title, the property, as soon as a title 'is acquired by the seller, will vest in the buyer.”
We think, too, that the plaintiff is estopped from maintaining this action. In consideration of indulgence on a debt then due, the plaintiff, by the paper in question, executes to the defendant, By-rum, an agreement intended as a mortgage, by which he stipulates, if the debt is not paid at the expiration of the period of indulgence, that Byriun shall be authorized to take the crops to be raised by him into his possession; and although, as against third persons, such agreement might not be held to be a valid mortgage, for the reasons above indicated, and possibly might not be sufficient to authorize the bringing of an action by Byrum against Moore to recover possession of the property mentioned, after default in payment of the debt, (about which, however, we express no opinion,) yet certainly when, upon default in payment of the debt, the property has been taken possession of by Byrum or by his agent, the plaintiff cannot be allowed to recover it back; for to do so he must repudiate *464his own agreement under which he obtained the desired indulgence. Having got what he wanted — indulgence—in consideration that By-rum should have authority to seize the property in question upon default in the payment of the debt, he is estopped from now denying such authority. The fact that the property was taken possession of under the warrant issued by the Clerk to enforce the supposed statutory lien, and not under the mortgage, eo nomine, cannot, in our opinion, make any difference. If By rum had authority, as we have seen that he had, to take the property into his possession, it matters not how he acquired the possession so that he did not violate the criminal law.—Wolfe vs. O’Ferrell, 1 Tr. Con. Rep., 155. Where the Sheriff levies upon and sells property under an execution which confers no authority, yet if at the time he has in his office an execution which does give such authority his action will be referred to that which confers the authority. So here, while the warrant issued by the Clerk may not have been sufficient to authorize the seizure, yet the paper upon which it was issued and to which it was attached, regarded as a mortgage, was sufficient to authorize the seizure of the property, and under it the taking could be justified.
The judgment of the Circuit Court is set aside and a new trial ordered.
Willard, C. J., and Hashell, A. J., concurred.