The force and justness of this principle will be more clearly seen, when it is considered what a contract really is. It is merely a consent, agreement, assent—a mere operation of the mind. The written instrument, called a contract, is only the evidence of the mental contract, or consent. It has no validity otherwise than as such evidence. The only really material matter is the mental operation, or assent.18 Now this mental exercise, or assent, can obviously produce no effect, except while it is in action. It must therefore pass the right of property then, or never. If, while it is in action, the right of property be in the person who experiences this assent, the assent passes the right of property to another. But if the right of property be not in him, while experiencing this sensation of assent, the sensation accomplishes nothing, because there is nothing on which it can operate. And if the person should ever after become the proprietor of the thing to be conveyed, he must experience the sensation again, in order to make the conveyance, because his former consent was of no force except while it continued.
This principle being established, that a contract for the conveyance of property, has no legal force, or validity, as a conveyance—that is, that it attaches to nothing, and conveys no right to anything—unless the maker, at the time the contract is made, be the owner of the rights he purports to convey, let us apply the principle to the case of a promissory note.
A promissory note is a contract (or, more accurately speaking, the evidence of a contract) for the conveyance of property—that is, of money. It is a bill of sale of money, that has been sold and paid for, and is to be delivered at a future time. It differs, in some particulars, from the contracts just mentioned, in regard to land, a horse, &c.; but it does not differ from them, in any particular that is essential to the principle just stated, to wit, that a contract for the conveyance of property, attaches only to the property that a man has when the contract is entered into—(and, of consequence, to such other property as may become indistinguishably mixed with it prior to the delivery.) The rights, which a creditor acquires by a promissory note, (or by the contract of which the note is the evidence,) are rights which attach to the debtor’s property the moment the contract is entered into, even though the money is not to be delivered for months or years afterward. And if the debtor have no property for the contract to attach to, at the time the contract is entered into, the contract is void, and can never afterwards attach to anything. And this is on the same principle, that a deed of a farm attaches to the farm from the moment the deed is made, and that the right of property in the farm passes, at that moment, from the seller to the buyer, even though the possession of the farm is, by agreement, not to be delivered for months or years afterwards. So also a bill of sale of a horse, attaches to the horse, and the right of property in the horse passes from the seller to the buyer at the moment the contract of sale is entered into, even though the horse, by agreement, is not to be delivered until a subsequent time. On the same principle, the right conveyed by a promissory note, (which is merely a contract for the sale and delivery of money,) attaches to the debtor’s property, and the lien passes to the creditor at the moment the contract is entered into, even though the money is not to be delivered until months or years subsequent. The right of the creditor must attach at the time the contract is entered into, or, for the reasons already given, it can never attach at all; and would therefore convey no rights at all to the creditor.
The principal points, in which a deed of land, or a bill of sale of a horse, (where the possession is to be delivered at a time subsequent to the contract,) differs from a promissory note, are these:
1. A deed of land, or a bill of sale of a horse, necessarily describes or designates a particular piece of land, or a particular horse; and it necessarily applies or attaches only to the one so described, because there is, and can be no other precisely like it. Bat a promissory note does not describe the particular dollars, that are sold, or are to be delivered, but only the number of them. It therefore does not apply, or attach to, any particular dollars; and it is not necessary that it should, because all dollars are of equal value, and therefore it is immaterial what particular dollars shall be delivered.
2. As a promissory note does not describe or designate the identical dollars sold, it cannot apply, or attach to any particular dollars, any more than to any other dollars that the debtor may have.
3. As a promissory note does not describe, designate, or attach to any particular dollars, in preference to others, it does not imply that the identical dollars, that are finally to be delivered, now exist in the hands of the debtor. And if it does not imply that those identical dollars now exist in the hands of the debtor, it does not even imply that the amount of value, which the dollars contain, or (in other words,) the amount of value which the note conveys, now exists (in the hands of the debtor) of the debtor) in the shape of dollars, any more than that it exists in any other particular shape, from which it can, by the time agreed on for the delivery, be converted into the particular dollars that shall finally be delivered, or into any dollars that the debtor may have a right to deliver in fulfilment of his contract. As the note does not describe or designate the identical dollars, that are sold by the contract, it does not imply or describe the particular shape, in which the amount of value sold, now exists; for if it do not imply that it exists in the shape of the identical dollars that are to be delivered, it does not imply that it exists in the shape of any other dollars, any more than that it exists in the shape of corn, wool, or iron. It only implies, therefore, that it exists, (that is, that the amount or value conveyed by the note exists,) in the hands of the debtor, in some shape or other, from which it is susceptible of being converted into dollars by the time agreed on for the delivery.
4. As the note does not describe the particular shape in which the value conveyed by it now exists, and does not even imply that it now exists in the shape of dollars, the note is, in effect, a lien upon all a man’s property for the number of dollars mentioned in the note; or it is a sale of so much value, existing in some shape or other, as will procure, or exchange for the number of dollars mentioned in the note, rather than a sale of any particular dollars themselves. That such is the fact, is evident from two considerations, to wit; first, that the identical dollars sold are not described, and therefore cannot be known; and, secondly, that the debtor is to have the use of them until the time agreed upon for the delivery. As the dollars, while remaining in the specific shape of dollars, can be of no use to the debtor, and can be used by him only by converting them into other commodities, and as they are to be left in his hands, for a certain time, solely that he may use them, it follows that it must have been the intention of the parties that the debtor should have the right of converting them into other commodities that might be productive, or susceptible of use in the mean time — that is, until the time of delivery; and, therefore, that the creditor should have his lien upon them, or upon an amount of value equivalent to them, into whatever shape they might be converted, or through whatever changes they might pass, previous to delivery; and that, in time for the delivery, this amount or value was to be converted again into dollars for that purpose.19
5. As the contract, to be of any validity, (that is, to convey any rights,) must, from the moment it is entered into, attach to something or other in the hands of the debtor; and as it does not designate, or therefore purport to attach to the identical dollars that are to be delivered, it can only attach to the general property of the debtor, as a lien for the number of dollars to be delivered. Unless it thus attach to the general property of the debtor as a lien, it would, of necessity, be a nullity, having no legal operation whatever, simply because there is nothing else for it to attach to.
A promissory note, therefore, for an hundred dollars to be delivered at a future time,