Opinion
02-10-1887
PAGE v. KENDIG and another.
R. S. Clymer, for complainant. C. G. Garrison, for defendants.
On bill for relief.
R. S. Clymer, for complainant.
C. G. Garrison, for defendants.
BIRD, V. C. The complainant held two chattel mortgages which he claims cover the merchandise now in the store of the mortgagors. The defendants recovered a judgment against the mortgagors, levied upon this merchandise, and now propose to sell it under their execution. Which has the better right? The complainant's mortgages are prior in date and of record to the judgment. The defendants insist that the goods and chattels now in the store, and which he has levied upon, are not the same goods and chattels named in the mortgages, and they further insist that they are the very goods which they sold to the mortgagors, and which were the consideration of the debt upon which this judgment is founded.
1. Are the goods and chattels within the purview of the mortgages? They were acquired after the execution of the mortgages. The language of the description is: "All the goods and chattels mentioned in the schedule hereunto annexed, and now in our possession in our store-room." The schedule is: "All the stock of merchandise, consisting principally of staple and fancy groceries and provisions; also all the store fixtures, including scales, weights, and measures; and also including all that may at any time, during the continuance of the mortgage, be purchased and obtained to replenish and replace the same, or any part thereof." Counsel for defendants insists that the contract is limited by the adverb "now" in the above quotation found in the body of the chattel mortgage, and that whatever may be found in the schedule cannot enlarge the terms of the sale. In this I think he is mistaken. The schedule is annexed to the mortgage. It is referred to in the mortgage, and thereby becomes a part and parcel of the mortgage itself,—as much so as though the very words had been incorporated in the body of the mortgage. I believe the universal rule is to construe two or more instruments together, and as one, when they are referred to in either, and it appears therefrom that they are part and parcel of the same contract. The schedule in this case shows conclusively that it was the intention of the parties to mortgage after-acquired property when purchased to replenish or replace any on hand at the date of the mortgage.
2. Does the fact that the judgment creditor sold the goods which he now has a lien upon by virtue of his execution give him any superior right? I think not. The title passed effectually to the vendee. The sale was as tohim in all respects complete. There is no pretense of fraud in the purchase whereby the slightest equity arises in favor of the vendor.
I therefore conclude that the complainant is entitled to the decree of the court on both points, and will so advise, with costs.