MORTGAGE OF ANIMALS AND THEIR INCREASE. 109 



whether by premium or otherwise," was held not to cover 

 future earnings.^*^ 



A mortgage of cattle described as "my herd of 1,500 cattle 

 ... all of such cattle being marked and branded . . . and 

 consisting of bulls and breeding and grazing cattle of one 

 year old and upwards," was held not to embrace calves less 

 than one year old when the mortgage was executed, or their 

 increase, the court saying : "It is . . . reasonable to conclude 

 that the addition of words which describe the property by the 

 several classes of which the herd consisted, and which omitted 

 one class, namely, those less than one year old, was intended 

 by the parties to exclude the latter from the operation of the 

 mortgage. . . . There is nothing except the general words 

 'my herd' which tends at all to show that it was the purpose 

 to embrace the calves. The other descriptive clauses lead to 

 a contrary conclusion." ^^^ 



The owner of a mare served by a stallion agreed in writing 

 with the owner of the latter to pay him twenty dollars twelve 

 months after date if his mare proved with foal, "colt holden 

 for payment." It was held that the agreement created a con- 

 tract lien in the nature of a mortgage.^^* 



38. Priority of the Mortgage Lien. — It appears to be gener- 

 ally held that the Hen of a mortgage is superior to that of an 

 agistor, livery stable keeper or breeder, subsequently created 

 by the mortgagor without the mortgagee's consent,^^* but 



^^ McArthur v. Garman, 71 la. 34. 



''- First Nat. Bk. v. West. Mort. & Inv. Co., 86 Tex. 636, reversing 6 

 Tex. Civ. App. 59. 



™ Sawyer v. Gerrish, 70 Me. 254. 



""Sargent v. Usher, 55 N. H. 287; Charles v. Neigelsen, 15 III. App. 

 17; Reynolds v. Case, 60 Mich. 76; Petzenka v. Dallimore, 64 Minn. 472; 

 Sullivan v. Clifton, 55 N. J. L. 324; Easter v. Goyne, 51 Ark. 222; State Bk. 

 V. Lowe, 22 Neb. 68; Hanch v. Ripley. 127 Ind. 151; McGhee v. Edwards, 

 87 Tenn. 506; Bissell v. Pearce, 28 N. Y. 252; Jackson v. Kasseall, 30 Hun 

 (N. Y.) 231; Monypenny v. Sells, 28 Ohio L. Journ. 112; Chapman v. 

 First Nat. Bk., 98 Ala. 528; Mayfield v. Spiva, 100 id. 223; Baskin v. 

 Wayne, 62 Mo. App. 515; Pickett v. McCord, Ibid. 467; Lazarus z'. Moran, 



