could mortgage or which was compatible with the mortgage here in litigation. That is in substance the second issue reported; but it becomes unnecessary to consider it, because, for reasons already stated, the plaintiffs fail to show title in themselves.

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The claimant Allen shows possession of the property under a claim of title. The plaintiffs, failing to show right to present possession of the property in themselves under their mortgage, cannot prevail. “A plaintiff in replevin * must maintain his case on the strength of his own title or claim. It is immaterial whether the defendant has or has not any title, if the plaintiff fails to show any in himself." Johnson v. Neale, 6 Allen, 227, 229; Silver v. Roberts Garage, Inc., 240 Mass. 571, 573, 134 N. E. 610. *

The "finding and order" of the superior court is right, and judgment is to be entered in accordance therewith.

So ordered.

DEXTER v. CURTIS et al.

(Supreme Judicial Court of Maine. 1898. 91 Me. 505, 40 A. 549, 64 Am. St. Rep. 266.)

Report from Supreme Judicial Court, Androscoggin County.

Action by Charles W. Dexter against Milford A. Curtis and others. Judgment on report for plaintiff.

WISWELL, J. Action of trover for the conversion of a portion of a stock of goods. The case comes to the law court upon report.

For the purpose of proving title in himself to the articles alleged to have been converted, the plaintiff introduced in evidence a chattel mortgage given to him by one Edwin G. Goss, which contains the following description of the property mortgaged: "All my stock in trade, consisting principally of confectionery, fruit, and cigars, and all my store furniture, fixtures, and appliances, excepting my soda fountain and appliances, and including all machinery and appliances for making ice cream, now contained and used in the store and basement occupied by me, situated in said Auburn, on the southerly side of Court street, and known as No. 50 on said street."

The mortgage also contained the following provision: "It is mutually agreed and understood by the parties to this mortgage that the said Edwin F. Goss shall be allowed to barter, sell, and exchange the above-named stock, and with the proceeds purchase other goods of a like kind, which, together with all additions to said stock, shall be equally subject to the lien of this mortgage."

It has been frequently decided in this state that a chattel mortgage does not ordinarily pass the legal title to after-acquired property, without some new act sufficient for the purpose, like a delivery to the mortgagee, and retention of the same by him, or a confirmatory writing properly recorded. *** But the rule is subject to this exception: That if the mortgage contains a stipulation authorizing the mortgagor to sell any portion of the mortgaged property, and requiring him to replace. that sold by purchasing with the proceeds other articles of a like kind, which are to be subject to the lien of the mortgage, then the mortgage will have that effect, and will pass to the mortgagee the legal title to the property so acquired.

* * *

While the evidence in this case is not as definite and as exact as could be desired, we think that the testimony of Goss, the mortgagor,which is entirely uncontradicted upon this question,-fairly shows that the goods claimed to have been converted by the defendant were either in the mortgagor's store, as a part of his stock in trade, when the mortgage was executed, or were subsequently purchased by him for the purpose of replenishing his stock, and paid for with the proceeds of the goods sold.

Are the defendants liable for a conversion of these goods? They were creditors of Goss. They had both constructive and actual notice of the mortgage. They obtained these goods from Goss for the purpose of reducing his indebtedness to them, and credit was given him for the goods upon their account. The title to goods thus obtained did not pass to them. While the mortgagor had the right to sell or to exchange any portion of his stock, he did not have the right to sell these goods to his creditors in payment of past indebtedness. Any person who obtained these goods of the mortgagor for this purpose did not acquire title to them, as against the mortgagee. The refusal to deliver the goods thus obtained, upon demand by the plaintiff, was a conversion.

There is no merit in the claim that a 'portion of these goods was received by the defendants in exchange for other goods which they at the time, or as a part of the transaction, delivered to the mortgagor, because the case shows that the mortgagor paid in cash for all goods received during the period that the defendants were obtaining the articles sued for.

According to the testimony upon the part of the defense, the price. agreed-upon, and for which the mortgagor received credit, was $134.47. The defendants also had of the mortgagor a quantity of cigars, the price of which was not settled by the parties to the transaction, but the value of which was estimated by one of the defendants to be $52.65. For these two amounts, together with interest from the time of the demand and refusal, the plaintiff should have judgment.

Judgment accordingly.

SAVAGE, J., having been of counsel, did not sit.

HOLT v. LUCAS, Sheriff, et al.

(Supreme Court of Kansas. 1908. 77 Kan. 710, 96 P. 30, 17 L. R. A. [N. S.] 203, 127 Am. St. Rep. 459.)

Replevin by F. H. Holt against A. T. Lucas, as sheriff, and another. Judgment for defendants, and plaintiff brings error.

PORTER, J. Plaintiff brought an action in replevin to recover 10 hogs valued at $150 and 11 calves valued at $55. His right to the possession of the property rests upon a chattel mortgage, given by Louis H. Wiggin, dated April 5, 1904. The defendant F. P. Dickson claims the property by virtue of an attachment, levied thereon by the sheriff of Shawnee county subsequent to the date of plaintiff's mortgage. The controversy is over the increase of the stock described in the mortgage. The mortgage includes 7 brood sows, 9 cows and heifers, and all the increase thereof. The defendants claim that plaintiff allowed the calves and pigs in controversy to remain in the possession of the mortgagor after the expiration of the natural weaning period,

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and after they had ceased to follow their mothers, and that for this reason, as against an attaching creditor, the increase was no longer subject to the mortgage lien. The jury found for defendants, and found the value of the property to be $180. They answered special questions, finding that the note secured by the mortgage was due and unpaid; that the property in controversy is the increase of the stock mentioned in the mortgage; that the 10 hogs were not littered at the time the mortgage was given, and were 20 months old when the action was begun; that the calves were born in the spring of 1905, and were from 8 to 11 months old when the action was commenced. There is also a finding that the property in controversy was in the possession of the mortgagor at the time of the attachment, and that plaintiff had never taken possession of the same under his mortgage. Another finding is that all of the increase had passed the nurture period and were separated from their mothers. The plaintiff filed a motion for judgment on the special findings, notwithstanding the general verdict. This was overruled, and judgment rendered in favor of the defendants, which the plaintiff seeks by this proceeding to reverse.

The principal question involved is whether the increase is subject to the lien of the mortgage, notwithstanding the fact that the nurture period had passed, and they had ceased to follow their mothers, and were separated therefrom. In Corbin v. Kincaid, 33 Kan. 649, 7 Pac. 145, it was held that a mortgage on domestic animals, which in terms covers the increase, is valid as to the increase. The question of the duration of the mortgage lien was not involved. A chattel mortgage given upon a crop after the seed sown has sprouted covers the grain, because the latter is an accession to what was already in existence when the mortgage was given; and, by analogy to this doctrine the increase of domestic animals, conceived, but unborn at the time the mortgage is given, may be included therein. This rule is recognized in 6 Cyc. 1049, with the following modification: "But as against a purchaser without actual or constructive knowledge of the mortgage, the lien does not continue after a suitable period of nurture has elapsed." To the same effect is Jones on Chattel Mortgages, § 149. The authorities cited in support of the foregoing texts, so far as we have examined them, are cases in which the increase was not mentioned in the mortgage. The authorities quite generally sanction the rule that a mortgage on domestic animals covers the increase, even though it is silent with reference thereto, and there may be reasonable grounds for holding that, where the mortgage is silent with reference to increase, and is given during the period of gestation, the lien should cover the increase only during the nurture period, but it is not necessary to decide that in this

In Funk v. Paul, 64 Wis. 35, 24 N. W. 419, 54 Am. Rep. 576, the view taken in Darling v. Wilson [60 N. H. 59, 49 Am. Rep. 305] is criticized, and the court used this language: "There would seem to be no valid reason for terminating the lien as against the mortgagor, merely because the period of 'suitable nurture' had passed. Such nurture did not give the lien, and its termination could not take it away as against the mortgagor." The increase was not mentioned in the mortgage, and the court, while holding the mortgage a valid lien thereon as between the parties, declared that it would not be valid as against bona fide purchasers without notice. In the present case the mortgage in terms describes the increase, and, in our opinion, must be held a valid

lien upon such increase as had an actual or potential existence when the mortgage was executed, and binding not only as to the parties themselves, but as to third parties. There appears to be no reason why the lien should be restricted to the period during which the young are following their mothers. The mortgage itself, by the mention of the increase, gives to subsequent purchasers and creditors sufficient notice to place them upon inquiry as to what animals the increase consists of. Cases of hardship frequently arise where live stock covered by a chattel mortgage have altered their appearance by growth, or have been removed to another county, and all the notice which a bona fide purchaser may have that a mortgage is in existence affecting them is constructive notice.

The plaintiff argues that the mortgage, being good as between the parties, is valid as against an attaching creditor, for the reason, as he contends, that an attaching creditor is not an innocent purchaser, and takes no better title than the attachment debtor had at the time of the levy. The contention is opposed to the prior decisions of this court. For instance, a chattel mortgage unrecorded is good between the parties, but absolutely void as against an attaching creditor of the mortgagor, where at the time of the levy the mortgagee is not in the actual possession of the property. * * * The language of our statute is, in substance, that an unrecorded chattel mortgage, not accompanied by immediate delivery, and followed by actual and continued change of possession, will be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagors in good faith.

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SECTION 3.-DESCRIPTION OF PROPERTY MORTGAGED

WALTER A. WOOD MOWING & REAPING MACH, CO. v. MINNEAPOLIS & NORTHERN ELEVATOR CO.

(Supreme Court of Minnesota, 1892. 48 Minn. 404, 51 N. W. 378.)

Appeal from district court, Hennepin county; Hooker, Judge. Action by the Walter A. Wood Mowing & Reaping Machine Company against the Minneapolis & Northern Elevator Company to enforce a claim to certain grain covered by a chattel mortgage to plaintiff. Judgment for plaintiff. Defendant appeals.

VANDERBURGH, J. The plaintiff claims to be entitled to certain wheat in defendant's possession by virtue of a chattel mortgage made by one McKellar, who raised the wheat, and is alleged to have wrongfully sold and delivered the same to the defendant, notwithstanding the mortgage. The mortgage was dated August 10, 1889. It was given to secure two notes, of $70 each, and was intended to cover a part of the next year's crop of the mortgagor; the description therein being as follows: "All the crops, wheat, oats, barley, flax, and corn, that shall be sown, planted, grown, raised, or harvested during the years A. D. 1890, 1891, on the following described land, now in my possession, in the town 161, R. 76, county of Bottineau and state aforesaid, to wit, 40 acres of wheat on N. E. 4 sec. 4, T. 161, R. 76." It is also alleged that the mortgagor raised on 75 acres in said quarter section a

large crop of wheat, which, when harvested and threshed, amounted to about 600 bushels.

The plaintiff claims and alleges that the wheat raised on 40 acres out of the 75 acres mentioned was subject to the lien of the mortgage, and amounted to about 220 bushels; but that the mortgagor sold and delivered to the defendant the entire product of the 75 acres, in fraud of the rights of the plaintiff. It does not appear that any attempt was ever made to sever the crop raised on 40 acres, or the 220 bushels alleged to have been raised thereon, from the whole product or mass of wheat raised on the 75 acres, or that the yield was uniform over the It is alleged that the defendant took with notice of plaintiff's mortgage and claim to the grain raised on 40 acres, but it does not appear that 40 acres of the grain was ever separately designated as a part of the 75 acres. We do not need, however, to consider what effect upon the rights of the parties such separation would have had if it had been seasonably made. Upon the facts alleged, the mortgage failed to take effect upon any part of the crop raised on the 75 acres. Whether we apply the doctrine that the land owner has a potential interest in the future products of his farm, capable of being mortgaged, or that a mortgage of property not yet acquired or in existence is to be treated as an executory agreement, which becomes operative as a mortgage, and attaches to the property when so acquired or in esse, it is settled that he may mortgage his crop in advance, and the mortgage will attach thereto as soon as it comes into existence, and, as respects the subjectmatter, will take effect as of that time; but the property mortgaged must be capable of identification, as in other cases. * * Though evidence aliunde may be received to apply or connect the description therein with the property claimed to be mortgaged, the description in the mortgage must be sufficient for such purpose. Souders v. Voorhees, 36 Kan. 142, 12 P. 526.

Whether in this instance the plaintiff could acquire any lien at all must depend upon the subsequent action of the mortgagor. As already suggested, the mortgage could not take effect until the crop was sown, and as he sowed, not 40 acres or less, but 75 acres, and the mortgage was limited to 40 acres, (but no particular 40 acres was designated or described,) it is impossible to determine which part of the larger tract the mortgagee is entitled to. There is nothing in the mortgage to connect it with any particular 40 acres; so that it did not, in fact, take effect at all. Suppose, after it was harvested and in shock or stack, the whole product of the 75 acres had been levied on, what part of it could the mortgagee identify and demand as his? Clearly he was not entitled to claim a lien on the whole till he could select the product of 40 acres. Under these circumstances, the mortgagee cannot invoke the aid of the court to enforce his mortgage. It was the mortgagee's own folly to take a mortgage so loosely drawn. Order reversed.