¶1If the lumber in controversy in this case was included in the mortgage from Marrion to the plaintiffs, then Marrion had no interest upon which an execution could be levied. To create such an interest, there must be, at least, a right of possession in the mortgagor for some definite period. Here the mortgagees had the right, if they deemed the property unsafe, to take possession at any time — a clause expressly designed to protect the mortgagees against the claims of the general creditors of the mortgagor. This clause left, I think, no rights of property in the mortgagor which could be levied upon by a creditor. If, however, it be conceded that Marrion, the mortgagor, retained a leviable interest until the plaintiffs elected to divest him of that interest by taking the property into their own possession, under the clause in the mortgage giving them that right, the proof shows that this had been done. On the 9th of July, when the attachment was levied, two cart-loads of the doors which had been made from the lumber had been actually drawn away by the plaintiffs, and a portion of the residue was then upon the cart preparatory to being removed, leaving only a few doors and a little lumber in the shop. Under these circumstances, the whole of the lumber may be considered as then in the actual possession of the plaintiffs; but if not, it was clearly such an exercise of their rights as effectually terminated all legal interest in the property on the part of Marrion. *42
¶2The only serious question which the case presents is, whether the lumber taken by the defendants was included in the plaintiffs' mortgage. The mortgage describes the lumber as "now in the shop occupied by the said Marrion;" while, from the proof, it is, perhaps, to be inferred that a portion of the lumber was then in the yard of Mr. Parsons, from whom it had been purchased by Marrion. At all events, the appellants have a right to assume that the jury would have so found. Upon the question of fact, whether it was intended to include in the mortgage that part of the lumber purchased of Parsons which remained to be delivered, if any, there can, I think, be no doubt, provided the parol evidence tending to establish this was admissible for the purpose. The very object for which the plaintiffs indorsed the note of Marrion was to enable him to obtain that portion of the lumber which Parsons swears he had refused to deliver without security. The mortgage was given to indemnify the plaintiffs for this indorsement, and the probability seems strong that the parties intended that the plaintiffs should have a lien upon the lumber which was thus procured solely by means of their indorsement, for their indemnity; and when we take into consideration the fact that the quantity mentioned in the mortgage is nearly the same as that purchased by Mr. Parsons, that this lumber was all bought together in one parcel, and that nothing appears to show that the shop of Marrion contained any other lumber, this probability rises almost to a certainty. The slight discrepancy between the amount bought of Parsons and that mentioned in the mortgage, is accounted for by the fact that a portion of the lumber had been previously manufactured into doors. But the question is, can this evidence be received to explain, or to aid in the interpretation of the phrase, "now in the shop," c.? There is nothing equivocal or ambiguous in this language. It is clear and explicit, and declares, in plain terms, that the lumber mortgaged was that then in the shop of Marrion. Taken, therefore, by itself, aside from all extrinsic proof, there is nothing in the mortgage which would authorize a resort to parol evidence to explain its terms. An ambiguity, however, is raised *43 by the evidence in the case. The mortgage describes the property mortgaged as consisting of 11,000 feet of lumber, c. Now, it does not appear from the case that Marrion had any lumber in his shop except that purchased of Mr. Parsons. The contrary is, I think, to be inferred from the whole evidence in the case, and especially from the testimony of the witness Swarz, who states that when the plaintiffs had removed what they took out of the shop, "there was nothing left in the shop but a few doors, and lumber sawed into doors, and an old bench." These doors were made from the lumber bought of Parsons. What 11,000 feet of lumber, then, was the mortgage intended to embrace? If there had been that quantity, or near that quantity in the shop, no parol evidence could have been received to show that any other was intended. But when it is shown that there was none there of any consequence, except that bought of Mr. Parsons, and that but a portion of that had been delivered, it becomes evident that the language of the mortgage fails fully to express the intention of the parties. This, then, is a latent ambiguity or uncertainty, which is created by the parol evidence in the case, and is one, therefore, which may be explained by any evidence, written or unwritten, within reach of the parties. This is decisive of the case, as the evidence, if admissible, leaves no doubt as to the real intention of the parties.
¶3COMSTOCK, Ch. J., DAVIES and BACON, Js., concurred; DENIO, WELLES and CLERKE, Js., dissented.