MOKTGAGE OF ANIMALS AND THEIR INCREASE. 105 



negligent killing of an animal in possession of the mortgagor 

 after condition broken. ^^^ 



Where animals are mortgaged their natural increase is also 

 subject to the mortgage though not mentioned in the in- 

 strument.-^* It is immaterial whether the young were con- 

 ceived prior to or subsequent to the date of the mortgage. In 

 an Iowa case the court had instructed the jury as follows : "To 

 entitle the plaintiffs to recover the possession of such of said 

 stock as were the increase or young of the stock covered by 

 the mortgage, they must establish the fact that such young 

 was conceived by their dams or mothers prior to the date of 

 said mortgage or else that after said mortgage the said 

 mothers and their increase were in the open possession and 

 control of plaintiffs [mortgagees]." The Appellate Court 

 said : "No exception was taken or objection made by either 

 party to this instruction. It must be regarded as presenting 

 the law of this case." ^^^ But in a later Tennessee case it was 

 held that the mortgagee is the owner of the increase though 

 the animal remains in the mortgagor's possession and was 

 bred by him after the execution of the mortgage and without 

 notice to the mortgagee.^^" The court said: "None of the 

 cases cited make any distinction between the case in which the 

 animal was bred before the execution of the mortgage and 

 that in which it was bred subsequently. In most of them, it 

 is true, the females were in fact pregnant at the time the mort- 

 gage was made; but in none of them do the courts attach 



"' Wylie V. Ohio R. & C. R. Co., 48 S. C. 405- 



'"Northwestern Bank v. Freeman, 171 U. S. 620; Pyeatt v. Powell, 51 

 Fed. Rep. 551; Dyer v. State, 88 Ala. 225; Meyer v. Cook, 85 id. 417;. 

 Gundy V. Biteler, 6 111. App. 510: Forman v. Proctor, 9 B. Mon. (Ky.) 

 124; Cleveland v. Koch, 108 Mich, 514; Kellogg v. Lovely, 46 id. 131; 

 Cumberland Bank v. Baker {N. J. Ch.), 41 Atl. Rep. 704; First Nat. Bk. v. 

 Western Mort. & Inv. Co., 86 Tex. 636. 



But see Boggs v. Stanky, 13 Neb. 400; Shoobert v. De Motta, 112 Cal. 



215- 



^' Thorpe v. Cowles, 55 la. 408. See Thompson v. Anderson, 94 id. 554. 

 '™ Ellis V. Reaves, 94 Tenn. 210, citing Latta v. Fowlkes (Tenn.), 29 

 S. W. Rep. 124. 



