After advisement, the following opinions were delivered:
Mr. Justice Bronson said, that according to his view of the case, the relation of mortgagor and mortgagee did not exist between Wilson and Taylor, and that, therefore, in his judgment, the law governing mortgages had no application; nor was there any fraud in the transaction. The only question is, who was the owner of the property, Wilson or Taylor 1 If he could protect the ap*130pellant from' loss upon any known principle of law, it would gratify him; but he had not been able to discover any principle, which would bear him out in doing so. The relation between the parties was that of debtor and creditor, and nothing more. The appellant himself, in his answer, does not claim to be the owner of the property, and the agreement that he should have the control and disposition of the beef, and of all other property and effects purchased by Wilson with funds furnished by him, or obtained on his responsibility, amounted to nothing until he availed himself of the stipulation by taking actual possession of the property. It had been said, that the appellant and Wilson were partners, but there was no foundation .for that position; there was no community of profits, and it is not to be presumed that Taylor himself ever thought . of forming a partnership with an insolvent. All that can be said is, that Wilson was under an honorary obligation to protect Taylor from loss; but Taylor, not having obtained the control of the property, and the creditor having secured his lien, the decree of the Chancellor, in his judgment, ought to be affirmed.
By Senator Veb.planck.
The view that I have taken of this transaction is this: It was not a partnership, as was maintained, for there is no stipulated communion of profits between the parties; nor were they to participate on any partnership principle in loss, since Taylor was first to be indemnified for all his advances. It has none of the features of an agency. Wilson purchasing and carrying on the business, in his own name, and on his own account, for his own profit, aided merely by the credit advanced to him by Taylor. It is plainly a regular advance of credit by Taylor to Wilson, to be secured by Taylor’s having (as appears in proof) “ the exclusive control and disposition of all the beef and property purchased by Wilson, or obtained on his responsibility.” It was a contract that the ■ beef, &c„ thus purchased by means of Taylor’s credit, *131should be liable to be held in pledge or mortgage to secure advances; but it was not an actual pledge or mortgage on specific property. It was a valid contract between Taylor and Wilson, by which the former was entitled thus to secure himself for any of his liabilities. He might have taken possession of the beef, &c. when fit for market and shipped it in his own name to his agent; in which case there would have been a valid and specific pledge. He might have made such arrangements by filing of mortgages from time to time, according to the statute, with such precautions of publicity as to the mode of carrying on the business, as would probably have protected him without actual possession. He did neither. The agreement between these parties, then, was a contract, valid in itself, and binding upon them, but not so carried into effect by the exercise of the stipulated ££ control and disposition,” as to make it effectual against creditors or subsequent purchasers.
The decree should be affirmed.
On the question being put, Shall this decree be reversed? all the members of the court present, who had heard the argument, answered in the negative. Whereupon the decree of the Chancellor was Affirmed.