Sales of chattels, by way of mortgage, constitute a very important, and in recent times a very frequent, class of sales on condition. (o) [A mortgagor of personalty, like a mortgagor of realty, has an equity of redemption in the mortgaged goods.](p) This subject is regulated * in many of the demned and sold. This was unknown to the factor and to the purchaser when the sale was made. As soon as the purchaser heard of it, he wrote to the factor repudiating the sale, on the ground that the cargo did not exist at the date of the contract. In answer to the plaintiff's declaration, the defendant pleaded the prior sale of the corn by the captain of the vessel as the agent of the plaintiff, the destruction of the cargo by reason of damage, unloading and sale, and the consequent repudiation of the contract by the purchaser. At the trial before Martin, Baron, his lordship ruled that the contract imported that at the time of sale the cargo of corn was in existence as such, and capable of delivery, and that as it had been sold and delivered by the captain before the contract was made, the plaintiff could not recover in the action. The case was afterwards argued in the Court of Exchequer, and this ruling reversed by a majority of the judges, with liberty to the defendant to bring a bill of exceptions. Upon argument before the Court of Exchequer Chamber on the bill of exceptions, the judgment of the Court of Exchequer was unanimously reversed. Upon the hearing of the case upon writ of error in the House of Lords, the judges who were called in by the House were unanimous in the opinion that the judgment of the Exchequer Chamber was right, and that the judgment of the Court of Exchequer was wrong. Alderson, B., was present. He was one of the majority judges in the Court of Exchequer; but having changed his opinion, he now concurred with the other judges called in by the House. Judgment was accordingly given in the House of Lords for the defendant in error.

(o) See 4 Kent, Com. 138, where the distinction between a pledge and a mortgage of personal property is fully set forth. A mortgage of goods is a conveyance of title upon condition, and if the condition is not performed, such title becomes absolute in law, but equity will, it seems, interfere to compel a redemption. Story on Bailm. § 287; Flanders v. Bar-stow, 18 Me. 357; 2 Story, Eq. §1031. As to what instruments will be construed as a mortgage, and what as merely a pledge, see Langdon v. Buel, 9 Wend. 80; Wood v. Dudley, 8 Vt. 435; Barrow v. Paxton, 5 Johns. 258; Coty v. Barnes, 20 Vt. 78; Whitaker v. Sumner, 20 Pick. 399, and post, Bailments under the head of Pledge. A mortgage of personal property, like that of real estate, may consist of an absolute bill of sale, and a separate instrument of defeasance, given at the same time. Brown v. Bement, 8 Johns. 96; Hopkins v. Thompson, 2 Port. (Ala.) 433; Winslow v. Tarbox, 18 Me. 132; Williams v. Roser, 7 Mo. 556; Barnes v. Holcomb, 12 Sm. & M. 306; Knight v. Nichols, 34 Me. 208. And although the bill of sale is absolute, and no writing of defeasance is given back, parol testimony is still admissible to prove that it was intended only as collateral security. Reed v. Jewett, 5 Greenl. 96; Carter v. Burris, 10 Sm. & M. 527; Freeman v. Baldwin, 13 Ala. 246. But see Whitaker v. Sumner, 20 Pick. 399; Mon-tany v. Rock, 10 Mo. 506. It is well settled that mortgages of personal property need not be under seal. Despatch Line v. Bellamy Co., 12 N. H. 205; Milton v. Mosher, 7 Met. 244; Flory v. Denny, 11 E. L. & E. 584; s. c. 7 Exch. 581.

(p) Davis v. Hubbard, 38 Ala. 185, 189; Wylder v. Crane, 53 Ill. 490; Flanders v. Barstow, 18 Me. 357; Flanders v. Chamberlain, 24 Mich. 305, 313; Leach v. Kimball, 34 N. H. 568; Hinman v. Judson, 13 Barb. 629; Bragelman v. Dane, 69 N. Y. 69; Boyd v. Beardin, 54 Wis. 193; Blod-gett v. Blodgett, 48 Vt. 32.

States by statute, and, in general, record is required if possession of the goods be retained by the mortgagor; and an equity of redemption is allowed. (q) It seems that a mortgage of personal property, where the mortgagor retains possession, is not valid against a subsequent bona fide purchaser or attaching creditor, if there be neither record of the mortgage, nor actual knowledge of it on the part of the purchaser or creditor. (r)

It has been frequently attempted to make a mortgage of personalty extend over chattels not then owned by the mortgagor, but to be subsequently purchased. As where a shopkeeper makes a mortgage of "all the goods in his store, and of all which shall be bought to replace or renew the present stock. " Such a mortgage might operate against the mortgagor somewhat by way of estoppel; but it has been decided that it is not * valid against a third party. (s) In general one cannot transfer

(q) Thus in Massachusetts an equity of redemption of sixty days is allowed the mortgagor after condition broken, or after notice of an intention to foreclose given by the mortgagee for such breach. R. S. ch. 107, §40; Stat. of 1843, ch. 72. Nearly similar provisions exist in Maine. R. S. ch. 125, §30.

(?) As between mortgagor and mortgagee, a mortgage of personal property is valid, although there be no delivery of the property and no possession by the mortgagee, or record of the mortgage on the registry. Smith v. Moore, 11 N. H. 55; Winsor v. McLellan, 2 Story, 492; Hall v. Snowhill, 2 Green (N. J.), 8. But as to subsequent purchasers, and attaching creditors of the mortgagor, without notice of the existence of the mortgage, by statute in several States, the mortgagee must either have and retain possession of the mortgaged property, or the mortgage must be recorded in the town where the mortgagor resided at the time of its execution. Smith v. Moore, supra. - And where such provision is made by statute, the recording is equivalent to actual delivery. Forbes v. Parker, 16 Pick. 462. But in New York it has been decided that the record of a mortgage does not rebut the presumption of fraud occasioned by the mortgagor's retention of the property, such record being merely an additional requirement. Otis v. Sill, 8 Barb. 102. The necessity of delivery to the mortgagee, or of a record, is wholly the effect of statutory provisions, and at common law a mortgage of personal property might be valid, in the absence of fraud, even against subsequent bond fide purchasers and attaching creditors, although the mortgagor remained in possession, and although no record of the mortgage existed. Holbrook v. Baker, 5 Greenl. 309; Bissell v. Hopkins, 3 Cowen, 166; Bucklin v. Thompson, 1 J. J. Marsh. 223; Letcher v. Norton, 4 Scam. 575; Ash v. Savage, 5 N. H. 545; Homes v. Crane, 2 Pick. 610. Such continued possession by the mortgagor may be sufficient evidence of fraud, but it would not alone be, in most States, conclusive. Id. In Ver-mont it would be. Russell v. Fillmore, 15 Vt. 130. Although the mortgagor remain in possession, and without any record of the mortgage, it seems that a subsequent purchaser, or attaching creditor having actual notice of the existence of the mortgages, acquires no rights against the mortgagee, the latter being guilty of no fraud. Sanger v. Eastwood, 19 Wend 514; Stowe v. Meserve, 13 N. H. 46; Gregory v. Thomas, 20 Wend. 17. The contrary has been held in Massachusetts. Travis v. Bishop, 13 Met. 304. And see Denny v. Lincoln, id. 200.