33 Conn. 577 | Conn. | 1866
The first question arising on the record nat-
urally is, what was the effect of the. mortgage given by Williams to Walker taken by itself. It is said by the respondents that this was absolutely void, as Williams was not at the time of the giving of the mortgage the owner of the property purporting to be conveyed. Upon this point, whether there can be a valid mortgage of personal property to be acquired in futuro, many authorities have been cited, and the decisions seem not to be uniform. It is hardly necessary to examine them particularly, as there has been a late decision of this court which must be considered as establishing the law here. In the case of Rowan v. Sharps’ Rifle Manufacturing Co., 29 Conn., 283, it was held, “ where a mortgage of a factory and its equipments embraced in its terms such machinery and stock as should be afterwards purchased and placed upon the premises, and the mortgagee had afterwards taken possession of the factory with such subsequently acquired property, that whatever effect was to be given to the provision in itself, it became operative upon possession being taken by the mortgagee.”
In the present case, as in the one cited, possession of the property was taken by the mortgagee; and his title would
But the petitioner insists that Smith, Daniels & Co. are estopped from setting up their title, for the reason that on the 5th of October Smith stated to him in reply to a question that the property was sold; and Smith was informed that a mortgage was about to be placed upon it, and a schedule was being taken for the purpose. The reply to this is to be found in the language of the court, that “ the petitioner did not inform him for what purpose he inquired, neither did Smith know the object of the inquiry, but honestly believing that the agreement that the firm had entered into with Williams would be carried out, replied as aforesaid.”
There have been so many decisions in this state on the subject of estoppels, and the principles are so well understood, that it is not necessary to quote authorities. The elements of estoppel do not exist in this case. The conversation was loose and casual, an agreement for the sale had in .fact been
It is further argued that Smith, Daniels & Co., upon learning at the clerk’s office of the mortgage to the petitioner, should have rescinded their contract of sale. There was no occasion for them to do this, and they would have had no object in doing it, as according to our view their mortgage was first and their title paramount in relation to the articles secured to them.
The prayer of the petitioner should be granted, he taking subject to the mortgage of Smith, Daniels & Co.
In this opinion the other judges concurred.