The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 77
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NATIONAL SURETY CO. V. UNITED STATES 77
quired subsequent to February 5, 1912, which it will be recalled was the
date of the mortgage. The exact wording of the mortgage is:
"All fixtures and articles of personal property attached to, or used in con-
nection with said premises, all of which it is declared are to be covered by this
The use of the words "are to be covered," it is argued, indicate an
intention to make the mortgage applicable to future acquired property.
It seems to us that, if the intention had been to cover future interests
or property subsequentlly to be acquired, that intention would have
been more clearly indicated. But, however that may be, it is the law
of New York that a mortgage of future interests is valid between the
parties thereto and against all other persons claiming under the mort-
gagor voluntarily, with notice, or in bankruptcy. Reynolds v. Ellis, 103
N. Y. 115, 8 N. E. 392, 57 Am. Rep. 701. It does not constitute a lien
as against creditors whose claims arose subsequent to the mortgage.
But there is no evidence in the record of this case that there were
any creditors of the bankrupt whose claims arose subsequent to the
execution of the respondent's mortgage. In the absence of any proof
that the trustee represents creditors whose claims arose subsequent
to the execution of the mortgage, the respondent is entitled to the
whole of the sum realized.
 And there is no evidence in the record to show that any of the
chattels sold were placed in the Madison Square Garden or in the Gar-
den Theater after the execution of the mortgage; and if there were
any such it is impossible to say what portion of the lump price obtained
for all the chattels represents the selling price of those obtained prior
to the execution of the mortgage as distinguished from the price ob-
tained for the chattels subsequently acquired. And we understand
it to be the law of New York that, where a person holding goods for
the account of another confuses those goods with his own, so that
they become inextricably mingled, the owner of the goods so mingled
may claim the entire mass. Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.)
62, 108, 513. And see Dunning v. Stearns, 9 Barb (N. Y.) 630, 634.
The order is affirmed, with costs.
NATIONAL, SURETY CO. v. UNITED STATES for Use of AMERICAN
SHEET METAL WORKS et al.
(Circuit Court of Appeals, Fifth Circuit. February 12, 1919. Rehearing
Denied March 15, 1919.)
1. PRINCIPAL AND SURETY :-57-SURETY COMPANIES-REINSURANCE---MAT-
Provision of contract, whereby the N. Surety Company agreed to take
the place of the E. Surety Company on all its bonds on which no written
notice was given by a certain time, that the E. Company agrees that
there was no default on any of the bonds known to its officers, does not
except from the reinsurance agreement a bond on which there was de-
fault known to such officers, in the absence of written notice, but is a
g::aFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/91/: accessed March 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.