Packwood v. Atkinson

79 Miss. 646 | Miss. | 1901

Whitfield, C. J.,

delivered, tbe opinion of tbe court.

Tbe appellant’s offer was to introduce, in connection witb tbe trust deed, wbicli contained a clause expressly covering increase of personalty, proof that appellee bad actual notice that this borse was subject to the lien of this trust deed. Under all tbe authorities, if appellee bad such actual notice, tbe appellant should have prevailed. Tbe trust deed, and tbe proof offered witb it, should have been received. Tbe court below manifestly held’ tbe clauses as to “increase of personalty and realty” and “after-acquired property” void, under its view of Williams v. Crook, 63 Miss., 9. But that was a wholly different case. That was tbe case of an alleged title to a mule that bad been attempted to be substituted for a borse covered by a trust deed. Tbe case which controls here is Mississippi Val. Co. v. Chicago, St. L. & N. O. R. R. Co., 58 Miss., at page 904, where it is distinctly held that a mortgage of animals, witb their increase, as “a flock of sheep and its natural increase and future-grown wool,” is valid at law. Tbe court there said: “A distinction is made by some of tbe authorities between mortgages of future acquisitions executed by railroad companies, and similar instruments made by natural persons. It is said that a mortgage of a railroad and its- future property will carry all after-acquired property appurtenant to and necessary for building and operating tbe road, and carrying out tbe purposes for which it was created, while a similar instrument will be inoperative if executed by a private person. This is true if tbe mortgage executed by tbe private ■person is upon a specified piece of property, without reference to any accretions or additions to it, because there can be no accretions of property appurtenant to tbe person of tbe mortgagor ; but it is untrue if the individual has mortgaged his business and the property then appurtenant to or afterwards to grow out of and to be added by accretion to tbe particular business that is pledged. Thus, a natural person, equally witb a corporation, can execute a valid mortgage of a ship and tbe profits of its voyage, or of a factory and the machinery then in it and to be placed in it, or of a farm and tbe products to be produced upon it, or of a flock of sheep and its natural -increase and future-grown wool; and so a railroad company can execute, in general terms, a valid mortgage of its roadbed and franchises, and all of its real and personal property then owned or thereafter acquired, provided the future acquisitions be such as belong naturally to the business of constructing and maintaining the road and' performing its primary end as a common carrier of passengers and freights. The things. which may be deemed- essential or useful, and therefore appurtenant, to the great work of building and operating a railroad, will frequently be more extensive and varied in their character than those which can properly be regarded as accretions to the business of-private persons; but the principle is the same, and, where the facts concur, the law must be the same as to both.” This is well settled bv abundant authority, and it is difficult to see how the court below could have been misled to the contrary. “Partus sequitur venirem” is the common-law maxim. See Dyer v. State,, 88 Ala., 229 (7 So. Rep., 267); Jones’ Chat. Mort., secs. 149, 150; Bank v. Freeman, 171 U. S., at page 630, 19 Sup. Ct., 39; 43 L. Ed., 307; Maize v. Bowman (Ky.), 17 L. R. A., 81, and note on page 82 (S. C., 19 S. W., 589), “As between Mortgagee of Dam and Other Claimants,” and other authorities in brief of appellant’s counsel.

There is no question here of the rights of innocent third parties being superior to the rights of the mortgagee in a mortgage with this clause in it, “after the time required for the suitable nurture of the young,” the increase of the dam. It was distinctly offered to be shown here that the appellee had actual notice. See Jones’ Chat. Mort., sec. 149.

Reversed and remanded.