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braska, we find an equal embarrassment. No decision of any court of that State has been made on the subject. No language of the revenue laws of the State fixes such a time expressly.

It is provided by the general statute 907 as follows:

"Section 26. The precinct assessors of each county shall meet at the office of the county clerk on the first Monday of April of each year, for the purpose of equalizing the assessments, and shall return their lists to the county clerk on or before the second Monday of the same month."

"Section 27. The County Commissioners of each county shall constitute a Board of Equalization for the county, and said Board, or any two of them, shall hold a session of at least three days, at the county seat, commencing on the third Monday of April in each year, for the purpose of equalizing and correcting the assessment roll in their county."

By section 28, the county clerk is directed to make out and transmit to the State Auditor an abstract of these matters as settled by the Board of County Commissioners, on or before the first Monday of May. On the fourth Monday in May, the Governor, State Auditor and Treasurer, are to meet as a state Board of Equalization and to decide upon the rate of the state tax, state school tax and sinking fund tax for the current year.

The Auditor is then to transmit this result to the county clerks on or before the second Monday in June, and on the first Monday in July the County Commissioners are required to meet and levy the necessary taxes for the current year.

By section 51, it is declared that taxes upon real property are made a perpetual lien thereupon, commencing from the first day of March of the current year, against all persons and bodies corporate, except the United States and 469] the State of Nebraska. *By section 15, all personal property is to be listed, assessed and taxed in the county where the owner resides, on the first day of March; but if the owner resides out of the State, it is to be listed and taxed where it may be at the time of listing.

These are all the provisions which we have been able to find bearing on the question, and they are far from conclusive. In regard to personal property, the first of March seems to be adopted as a criterion to determine who shall pay the tax, and what county shall receive it when it has changed locality or ownership during the year and before the tax is levied. This 478] may also be the reason of fixing the lien of the tax on land on the same day, that vendor and vendee may have a rule to determine upon whom the burden shall fall. But from this time until the state Board of Equalization on the fourth Monday in May acts finally upon it, the assessment of property both real and personal, is in progress and is incomplete, and the final levy of the tax does not take place until July. In the absence of any day or time fixed decisively by the statute or clearly deducible from it, and of any decision of any court of the State on the subject, or of any long and well settled practice by the state authorities, we hesitate to say that when land is

only exempt from taxation by reason of the claims upon it of the Federal Government, and those claims are satisfied before the final proceedings are concluded, it would not be included in that assessment. In such case not half the current year for which the taxes are levied has expired. The general matter of assessment or valuation for taxation is still within the control of the proper officers, and if it is brought to their knowledge that the full ownership of the lands has passed from the United States to individuals or corporations, it would seem equitable that they should bear their share of the burden of taxation.

We are the more inclined not to interfere in this case by the extraordinary remedy of injunction, because it is shown that as to all these lands, not only had all dues to the United States been paid before the final action of the state Board of Equalization, but patents had issued for all of them before this suit was brought. At the time, therefore, of filing this bill to prevent the collection of taxes on account of the interest of the United States in the lands on which they were levied, the United States had no interest in the land which would forbid their being taxed; nor is it clear that they had any when the lands were assessed. The costs of surveying were paid before even the precinct assessors assessed these lands, as they then thought they had a right to do, and it is extremely uncertain whether any costs of selecting or conveying the lands within the meaning of the Act of Congress existed or were unpaid.

*Under all the circumstances, without [*479 deciding that there is any particular day to which, by the laws of Nebraska, the liability for taxation of real estate must always be referred, or if there be, what that day is, we affirm the decree of the Circuit Court dismissing the bill in this case.

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not, under section 11 of the Bankrupt Act, have 1. A decree in bankruptcy, without more, will the effect to devest the petitioner of the title to his real or personal estate.

2. Prior to the assignment and conveyance authorized and directed by section 14 of that Act, the title of the estate belonging to the debtor, both real and personal, remains unchanged, and such debtor may redeem his lands from a tax sale, under a state statute authorizing the owner of lands to redeem from a sale for taxes.

3. Although section 14 of the Bankrupt Act provides that such assignment or conveyance shall relate back to the commencement of the proceedings, the instrument of assignment cannot operate either retrospectively or prospectively before it is executed.

4. Until an assignee is appointed and qualified, and the conveyance or assignment is made to him, the title to the property, whatever it be, remains in the bankrupt. [No. 144.]

Argued Jan. 19, 20, 1875. Decided Feb. 1, 1875.

NOTE. Sale of land for taxes; strict compliance with the statute necessary-see note to Williams v. Peyton, 4 L. ed. U. S. 518.

IN

N ERROR to the Circuit Court of the United States for the Southern District of Mississippi.

This was an action of ejectment, brought in the court below by Rouse, the defendant in error, against the plaintiffs in error and three other parties, to recover a plantation known as "Richland," which had been sold at the tax sale. The consent rule was entered into only by the plaintiffs in error, and they pleaded "Not guilty."

The plaintiff, Rouse, introduced in evidence a deed from the sheriff of Washington County, Mississippi, to Ike Robinson, Treasurer of the Board of Levee Commissioners and to his successors in office. This deed bears date Apr. 3, 1867, and was acknowledged and recorded May 14, 1867. Plaintiff also introduced in evidence a deed from W. A. Haycraft, Treasurer of the Board of Levee Commissioners, to himself, for the same land. This deed was dated Mar. 26, 1869, and was recorded Mar. 27, 1869.

These conveyances were made by virtue of the Act of Nov. 27, 1865, entitled an "Act to Incorporate the Board of Levee Commission ers, for Bolivar, Washington and Issaquena Counties, and for Other Purposes." The land was sold for the taxes of the year 1866. Wade Hampton, to whom the land was assessed for the taxes for non-payment of which it was sold, and who was then the owner of the land, applied for the benefit of the Bankrupt Act Dec. 29, 1868, and was declared to be a bankrupt Feb. 17, 1869. Apr. 19 of the same year one Ferguson was appointed his assignee.

Apr. 10, 1869, Wade Hampton, Jr., went to the office of Haycraft, and, as he testified of fered to redeem the lands in controversy in behalf of his father; but that Haycraft, owing to press of business, could not attend to the matter. The testimony as to this offer to redeem is somewhat vague and contradictory, but it would seem that the offer, if distinctly made at all, was to pay the amounts due out of the proceeds of certain bonds which had been deposited by said Hampton previously in the hands of Haycraft.

Upon this question the court below charged the jury as follows:

"The defendant, Wade Hampton, having been adjudicated a bankrupt on his own application after the land was sold for taxes, had thereby ceased to be the owner of the land and lost the right to redeem; and even if he had not lost such right to redeem, that right could only have been exercised by applying within two years from the day of sale, either to the levee treasurer or the clerk of the probate court, and paying or tendering to such officer the amount for which the land was sold for taxes, with all subsequent taxes due thereon, and fifty per cent, per annum interest on the whole amount. An application on the 10th of April, 1869, made by Wade Hampton, Jr., to the levee treasurer to purchase or redeem all the lands of his father which had been sold for taxes, would not be equivalent to a redemption, unless he tendered the money necessary for that purpose, or went there prepared to make pay. ment or tender thereof, either in gold or silver or in United States currency; and a tender or offer to redeem by making a payment in the bonds or obligations of the liquidating Levee

Board was not a sufficient tender or offer to redeem."

Messrs. Wm. W. Boyce and J. Lowndes, for plaintiff in error.

Mr. P. Phillips, for defendant in error.

Mr. Justice Clifford delivered the opinion of the court:

Lands occupied as a plantation estimated to contain two thousand seven hundred and twenty nine acres, were owned by the first named defendant, together with another large plantation, the title to which is not involved in the present controversy. Both tracts, it seems, are situated in one of the counties of the State bordering on the Mississippi River, and it appears that the owner was taxed in respect of the same under the Act making it the duty of the Levee Commissioners of the County to build, strengthen, extend or make new levees in their counties, and that the owners having failed to pay the taxes required, the lands contained in both plantations were sold by the sheriff of the county, and that no one having bid the amount of the tax,. the two tracts were struck off to the Treasurer of the Levee Board for that amount and the charges, and that the lands contained in the two tracts were conveyed in separate deeds by the sheriff to the bidder and his successor in office.

Whatever title the treasurer of the Levee Board acquired to the plantation in controversy, he conveyed to the plaintiff, and the record shows that the plaintiff brought ejectment against the defendants to recover the premises, and it is admitted that they were in possession of the same at the time the suit was instituted. Service was made and the defendants appeared and pleaded not guilty, and upon that issue the parties went to trial. Evidence was introduced on both sides, and the jury, under the instructions of the court, found a verdict for the plaintiff, and the defendants excepted. Judgment was subsequently rendered on the verdict, and the defendants sued out a writ of error and removed the cause into this

court.

Since the cause was removed here, the defendants below have filed the following assignment of error:

I. That the Act under which the taxes were levied is a violation of the Constitution of the State, for the following reasons: (1) Because the Constitution of the State assigns the exclu sive jurisdiction of such matters to a Board of each County, called the Board of Police, who are required to be elected by a popular vote. (2) Because the Act provides for a forfeiture of the lands taxed in case the owner fails to pay the tax in violation of the bill of rights which declares that a citizen "shall not be deprived of his property, but by due course of law." (3) Because the Act provides for the sale of the land taxed, if the owner fails to pay the exaction without previous notice, in viola tion of the provision in the Bill of Rights, which declares "that all men are entitled to equal rights."

II. That the court erred in ruling that the deed of the sheriff to the levee treasurer, and the deed of the levee treasurer to the plaintiff below, were prima facie evidence that the land was subject to the tax for the payment of which

it was sold, and of a compliance with all the prerequisites of the sale.

III. That the court erred in ruling that a failure on the part of the sheriff to file the deed in the office of the probate court on the day of sale, would not avoid the title of the grantee under the deed.

IV. That the court erred in ruling "That the principal defendant below, having been adjudged a bankrupt on his own application after the land was sold for the taxes, had thereby ceased to be the owner of the land, and lost the right to redeem."

V. That the court erred in holding that the application made by the agent of the principal defendant to the levee treasurer to purchase or redeem all the lands which had been sold for the taxes, was not equivalent to a redemption of the same, unless he tendered the money necessary for that purpose, or went prepared to make payment or tender the amount in gold or silver, or in United States currency. Several questions of importance are involved in the record; but in the view taken of the case it will be sufficient to decide the one presented in the fourth assignment of errors, which is the same as the exception to the fourth instruction given by the court to the jury, as embodied in the bill of exceptions. It reads substantially as follows: That the defendant, Wade Hampton, having been adjudged a bankrupt on his own application, after the land was sold for taxes, had thereby ceased to be the owner of the land and lost the right to redeem.

By the record it appears that the lands were sold for the taxes on the 23d of April, 1867, and that the offer to redeem the same was made by the agent of the owner on the 10th of April, 1869, less than two years from the sale, which being within two years from the date of the sale, was within proper time as allowed by law. Evidence tending to show that such an offer was duly made, was introduced by the defendants, and they contended that the offer to redeem the lands, under the circumstances disclosed in the evidence, was equivalent to a redemption of the premises, and operated as a bar to any right of the plaintiff to recover the same; but the court ruled otherwise, and told the jury that the former owner, having been adjudged a bankrupt on his own application after the land was sold for the taxes, had thereby ceased to be the owner of the land, and had lost the right to redeem.

of the applicant, and to give such personal or other notice to all concerned as the warrant directs, which notice shall state as follows (1) That such a warrant has been issued. (2) That the payment of debts, or the delivery or transfer of property to the debtor, is forbidden by law. (3) That the creditors will meet on a day therein named, to prove their debts and choose an_assignee.

Pursuant to that notice, the creditors are required to meet on the day named, and the further requirement is, that one of the registers shall preside at the meeting, and that the creditors, in his presence, shall choose one or more assignees of the estate of the debtor.

Argument to show that none of those proceedings have the effect to devest the debtor of his estate, real or personal, is hardly necessary, as neither of the sections of the Act embodying those requirements contain any language whatever to import or indicate that anything of the kind was intended by the framers of the Act. Conclusive support to that view, if any be needed, is derived from the 14th section of the Act, which provides that as soon as the assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto, and that such assignment shall relate back to the commencement of the proceedings in bankruptcy; and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in the assignee. 14 Stat. at L., 522.

Prior to the assignment and conveyance authorized and directed by that section, the title, whatever it be, of the estate belonging to the debtor, both real and personal, remains unchanged, except that the court, in certain cases, may in the meantime restrain the debtor or any other person, by injunction, from making any transfer or disposition of any part of the same, not excepted from the operation of the Act.

Sufficient appears in the sections of the Act referred to, when considered in connection with the admissions and other evidence exhibited in the record, to show, beyond doubt, that the instruction of the court under discussion is erroneous, and that the error was of a character to supersede every question of fact submitted to the jury.

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same year, and the testimony reported shows that the bankrupt was in the possession of the premises and that he ever after continued in the possession of the same to the present time.

Debtors, owing debts provable under the Plenary evidence was given that the offer to Bankrupt Act, exceeding $300, may apply. by redeem, as exhibited in the transcript, [*274 petition, if in due form, to the judge of the was made on the 10th of April, 1869, and the proper district for the benefit of that Act; and admission is that the assignee of the estate the provision is, that if such an applicant shall of the bankrupt was not appointed and qualcomply with all the requirements and condi-ified as such until the 19th of April in the tions of the 11th section of the Bankrupt Act, he shall be adjudged a bankrupt; but it is clear that such a decree, without more, will not have the effect to discharge the debts of the petitioner, nor to devest him of the title Whether or not the evidence, introduced to either to his real or personal estate. Power is prove that an offer to redeem the premises was also given to the district judge, in that state made at the time, was sufficient to avail the of the case, or if there be no opposing party, defendant as equivalent to a tender, it is not to any register of the court to be designated by necessary at the present time to decide, but the judge, to issue a warrant directed to the the court is of the opinion that it was of such marshal of the district, authorizing him as a character, in view of a recent decision of this messenger to publish notices, in such news court, that it ought to have been submitted papers as the warrant specifies, to all creditors to the jury, untrammeled by a prior instrucnamed in the schedule filed with the petition | tion, which in substance and effect amounted

to a direction to the jury that their verdict must be for the plaintiff.

the operation of the Bankrupt Act, and vests the title to the same in the assignee, but the record in this case shows that *no as- [*276 signee had been appointed when the alleged offer to redeem was made, which affords a demonstration that the charge of the court that he had ceased to be the owner of the land and thereby lost his right to redeem was improper, being equivalent to a direction to the jury to find a verdict for the plaintiff. Wright v. Johnson, 4 Nat. Bk. Reg., 627; 8 Blatchf., 150; Bump, Bankruptcy, 7th ed., 22.

Such an offer to redeem it was held, in the case of Bennett v. Hunter, 9 Wall. 338, 19 L. ed. 696, might be made by the owner or by an agent or by any person willing to act for the party interested, upon the ground that an act done by a third person for the benefit of another is valid, if ratified either expressly or by implication; and that such ratification will be presumed in furtherance of justice. Since that time it has also been decided, that if the tax commissioners announce that they will not receive the payment of the taxes in such cases unless tendered by the owner, a formal offer by another to pay is unnecessary, that it is enough if a relative of the owner went to the office of the commissioners to see after the pay-with directions to issue a new venire. ment of the tax, even though he made no formal offer to pay, because such an announcement is in effect a waiver of a tender by the commissioners, they having declined to receive THOMAS M. ELLIOTT, Assignee of J. T. payment unless the tender is made by the owner in person. Tracey v. Irwin, 18 Wall., 550, 21 L. ed. 786.

Other questions were discussed at the bar, but the court is of the opinion that it is not necessary to decide any other question at this time.

Judgment reversed and the cause remanded,

ANDREW L. ROBINSON et al., Appts.,

บ.

Coolidge, a Bankrupt.

(See S. C., 22 Wall., 513–527.)

Mortgage of chattels, when valid—when invalid -question of law.

1. Under the Indiana Statute, which declares valid, unless recorded, and that the question of mortgages of goods unaccompanied by delivery infraudulent intent is a question of fact, a mortgage which simply allows the mortgagor to retain the possession and use of the property until breach of the condition is, when duly recorded, prima facie valid.

Apply that rule to the case and it is clear that the evidence introduced by the defendants tending to show an offer to redeem the premises should have been submitted to the 275*] *jury under proper instructions. Instructions of the kind, however, would have been useless after the jury had been told that the defendant ceased to be the owner of the land, and that he lost his right to redeem the 2. But a mortgage of a stock of goods, containing same when he was adjudged a bankrupt, ita provision authorizing the mortgagor to retain possession for the purpose of selling in the usual appearing that the decree was entered before course of trade, and to use the money thus obtained the offer to redeem was made, as assumed by to replenish his stock, is invalid, and the court can, both parties. as a matter of law, pronounce it void.

as the 3d

3. Where the mortgage on its face shows that the legal effect of it is to delay creditors, the law imputes to it a fraudulent purpose. [No. 417.]

PPEAL from the Circuit Court of the Unit

NOTE. Chattel mortgage allowing possession and sale of goods; whether void or not. A mortgage of chattels is void as to creditors when it appears on its face or by extrinsic evidence that the mortgagee gave the mortgagor unlimited power to dispose of the mortgaged property for his own use. Orton v. Orton, 7 Or., 478, 33 Am. Rep., 17; Davenport v. Foulke, 68 Ind., 382; Voothis v. Langsdorf, 31 Mo., 451; Mobley v. Letts,

Enough appears in the language of the 14th section of the Bankrupt Act to demonstrate the proposition that the instruction of the circuit court in that regard was incorrect, nor Submitted Dec. 21, 1874. Decided Feb. 8, 1875. is the question affected in the least by the fact that the same section provides that such Aed States for the District of Indiana. assignment or conveyance shall relate back to the commencement of the proceedings, as the The bill in this case was filed in the court instrument of assignment cannot operate below by the appellant, for an accounting and either retrospectively or prospectively before for the sale of certain goods under a chattel it is executed. Until an assignee is appointed mortgage. A decree having been entered disand qualified and the conveyance or assign- missing the bill, the complainants took an ap ment is made to him, the title to the property, peal to this court. whatever it be, remains in the bankrupt, which is the plain meaning of the 14th section of the Bankrupt Act. Sutherland v. Davis, 42 Ind., 28. Different regulations in that respect were enacted in the former Bankrupt Act section of that act provided that all the property and rights of property, of every name and nature of the bankrupt, not excepted from the operation of the A chattel mortgage which by its conditions perAct, shall, by mere operation of the mits the mortgagor to remain in possession of the law ipso facto, from the time of such decree, property and to deal with it as his own, disposing of it by sale in due course of trade, is fraudulent in be deemed to be devested out of such bankrupt, law as to the creditors of the person making the without any other act, assignment, or other same and as to subsequent purchasers, and is abconveyance whatsoever." 5 Stat. at L., 443; solutely null and void as to them, without reference to the bona fides of the mortgage debt or the Ex parte Newhall, 2 Story (C. C.), 362; Oakey intention of the mortgagor as to fraud. If the v. Bennett, 11 How., 44. Unlike the old Act, power of disposition does not appear upon the face the existing Act makes it the duty of the court, of the mortgage, but it is so understood or agreed by the parties at the time the mortgage is executed, or, where there is no opposing interest, of the it is equally void. Collins v. Myers, 16 Ohio St., register, by an instrument under his hand, to 547: Freeman v. Rawson, 5 Ohio St., 1: Harman v assign and convey to the assignee all the esAbbey, 7 Ohio St., 218; Griswold v. Sheldon, 4 N. Y., 581; Twyne's case, 3 Co., 80; Ryall v. Rawles, tate, real and personal, of the bankrupt, and 1 Ves., Sr., 348: Addington v. Etheridge, 12 Gratt, the rule is that such a conveyance or assign-436; Ball v. Slafter, 26 Hun, 353; Smith v. Cooper, ment devests the bankrupt of the whole of 27, Hun, 565: Bainbridge v. Richmond. 17 Hun. 391 McLachlan v. Wright, 3 Wend., 348: Drover his property, except what is exempted from v. McLaughlin, 2 Wend., 596; Wood v. Lowry. 17

61 Ind., 11.

The case is fully stated by the court: Messrs. A. L. Robinson, in person, and Asa Inglehart, for appellants:

In Maple v. Burnside, 22 Ind., 139, the Supreme Court of Indiana has decided the precise question under consideration. The main question before the court was, whether Maple, the attachment defendant, had sold, conveyed or otherwise disposed of his property with the intent to cheat, hinder or delay any of his creditors. The fact of fraud relied upon was the making of a chattel mortgage, permitting the mortgagor to remain in possession of the goods and deal with them as his own.

It will be observed, when we come to examine counter authority, that the cases relied upon by the appellees hold that it is totally indifferent whether the permission to deal with the goods be as in the case at bar, or whether the permission be given outside the mortgage, as in the case we are referring to.

In Chissom v. Hawkins, 11 Ind., 316, also in Coe v. McBrown, 22 Ind., 252, the court not only holds good a mortgage upon after acquired property, but, in the latter, holds it good upon firewood in possession of the mortgagor, which he was using and consuming as his own, the Supreme Court holding that a lien by way of mortgage for property not in esse, is good in equity and will be enforced when the property comes in esse, citing the former case, Sm. Merc. L., 693, and Mitchell v. Winslow, 2 Story, 630, of which more hereafter.

This, of course, establishes the position that if the mortgage be not absolutely void, as we contend it is not, it is valid, as well as to after acquired property, as to that which was owned by the mortgagor when the mortgage was made.

Taking into consideration the different statutory provisions of the several States, the preponderance of authority is with us outside of the State of Indiana.

We will first briefly refer to the cases which sustain that mortgage in other States.

Mitchell v. Winslow, 2 Story, 630-648.

Wend., 492; Stoddard v. Butler, 20 Wend., 507; Edgell v. Hart, 13 Barb., 380; Edgell v. Hart, 9 N. Y., 213; Gardner v. McEwen, 19 N. Y., 123; Mittnacht v. Kelly, 3 Keyes, 407; Russell v. Winne, 47 N. Y., 591: Southard v. Benner. 72 N. Y.. 424; Brackett v. Harvey, 91 N. Y., 214, Coburn v. Pickering, 3 N. H., 415; Ranlett v. Blodgett. 17 N. H., 298: Putnam v. Osgood, 52 N. H., 148; Horton v. Williams, 21 Minn., 187; Place v. Langwo thy, 13 Wis., 629; Steinart v. Denster, 23 Wis., 136; Bishop v. Warner. 19 Conn., 460; Davis v. Ransom, 18 Ill., 396; Barnet v. Fergus, 51 Ill.. 352: Dunning v. Mead. 90 Ill., 376; Walter v. Wimer, 24 Mo., 63: Stanley v. Bruce, 27 Mo., 269; Armstrong v. Tuttle, 34 Mo., 432; Lodge v. Samuels, 50 Mo., 204; White v. Graves, 68 Mo., 218; Welsh v. Bikey, 1 Pa., 57; Homer v. Geesaman, 17 S. & R., 251; Williams v. Lord, 75 Va., 390; Mann v. Flower, 25 Minn., 500; Lund v. Fletcher, 39 Ark., 325, 43 Am. Rep. 270.

It is however, held in some States that a chattel mortgage which permits the mortgagor to continue in possession and sell the goods in the ordinary course of business, is not void per se; the power to sell is only evidence of a fraudulent intention, to go to the jury, who are upon the facts to determine the question of fraud. Oliver v. Eaton, 7 Mich., 108; Gay v. Bidwell, 7 Mich., 519; Leland v. Collver, 34 Mich., 418; Stedman v. Vickery, 42 Me., 132; Deering v. Cobb, 74 Mo., 332, 43 Am. Rep., 596 Cheatham v. Hawkins, 76 N. C., 335, 80 N. C., 161; Bynum v. Miller, 89 N. C.. 393; Hughes v. Cory, 20 Iowa, 399; Smith v. McLean, 24 Iowa, 322 Clark v. Hyman, 55 Iowa, 14; Gregory v. Whedon, 8 Neb., 373; Hedman v. Anderson, 6

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The law of recording chattel mortgages in Maine and Indiana is the same.

In Abbott v. Goodwin, 20 Me., 408, the court decided that if the mortgagor sell the goods, and with the proceeds thereof purchase other goods, these last represent the first and are substituted for them, and are equally subject to the lien of the mortgages thereon, citing Macomber v. Parker, 14 Pick., 497; see, also, Arnold v. Mower, 49 Me., 561; Stedman v. Vickery, 42 Me., 132, 25; State v. Wilson, 42 Me., 8.

In Oliver v. Eaton, 7 Mich., 108, the provisions of the mortgage and very many of the facts were similar to the case at bar. Campbell, J., says: "By leaving such case to the jury, each instrument is made to stand upon its own actual merits; which is much safer in questions of fraud, whose manifestations are infinitely various, than the adoption of fixed rules, which must fail to meet numerous cases."

In Gay v. Bidwell, 7 Mich., 520, this doctrine is held in numerous cases cited by the court. Campbell, J., in delivering the opinion of the court, says: "To hold that a merchant cannot mortgage his goods without closing his doors, would be to hold that a chattel mortgage is worthless."

In Torbert v. Hayden, 11 Ia., 435, the court, Lowe, Ch. J., says that "Naked possession without the power of use or sale, would be a barren right equally productive of mischief to both parties, tying the hands of the debtor, and suppressing all effort to realize from the property, money requisite to extinguish the debt." Hughes v. Cory, 20 Ia., 399.

The Statutes of Massachusetts upon the subject of chattel mortgages are substantially like those in Indiana.

The decisions, however, are not entirely in conformity with the rulings of Indiana upon the points under discussion. There are two exceptions: the Massachusetts authorities hold that property not in esse or after acquired property does not pass by a mortgage, but Neb., 392; compare Turner v. Killian, 12 Neb., 580; Williams v. Winsor, 12 R. I., 9; Morris v. Stern, 80 Ind., 227; Berghoff v. McDonald, 87 Ind., 549; McFadden v. Fritz, 90 Ind., 590; Hirshkind v. Israel, 18 S. C. 157; Cobb v. Farr, 16 Gray, 597; Fletcher v. Powers, 131 Mass., 333; Tickner v. Wiswall, 9 Ala., 305; Price v. Mazange, 31 Ala., 701; Frankhouser v. Ellett, 22 Kan., 127, 31 Am. Rep., 171; Van Meter v. Estill, 78 Ky., 456; Rose v. Bevan, 10 Md., 466.

Mortgage of an entire stock of goods, which includes all others of a like nature that may be put in the store and be on hand when default is made, the mortgagor remaining in possession and selling in the usual course of business, and making purchases to replenish the stock, is fraudulent as to creditors. Harmon v. Hoskins, 50 Miss., 142; Simmons v. Jenkins, 76 Ill., 479; Putnam v. Osgood, 51 N. H., 192.

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A mortgage of goods allowing the mortgagor to retain possession of them, and to sell them "in the usual retail way,' but requiring him to "pay over the goods are sold," is, upon its face, a valid mortthe money received therefor to the mortgagee as Kleine v. Katzenberger, 20 Ohio St., 110, 5

gage.

Am. Rep. 630.

Mortgage of all goods "now in the store occupled" by the mortgagor, supplemented by parol proof of what goods were in the store at the execution of the mortgage, is sufficient to pass the property. Burditt v. Hunt, 25 Me., 419, 43 Am. Dec., 289.

For exhaustive note on this subject-see note, 18 L. R. A. 604.

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