53 Iowa 491 | Iowa | 1880
On the trial the plaintiff sought to prove this mistake, hut upon defendant’s objection the evidence was excluded. In this there was no error for two reasons. The petition did not ask a reformation of the mortgage. If it had, it could not have been granted in this action because it is a proceeding at law. Van Dusen v. Parley, 40 Iowa, 70, simply holds that a defendant in an action at law may set np an equitable defense, and bave a written instrument reformed.
It is probable if the property had been described as so many acres of growing wheat, etc., now on the farm of or in possession of the mortgagor, it would have been sufficient. In such case reasonable inquiry would locate and identify the property. Smith & Co. v. McLean, 24 Iowa, 322. The mortgage went further than this, and stated the section, township and range on which the wheat, etc., was growing. In other words the location of the property was definitely fixed and rendered certain.
Conceding the bank had notice of the mortgage and its contents, it clearly appeared from such description that the
The bank had knowledge the property mortgaged was on the real estate described. It also knew there were sixteen sections in the county, which would equally "well answer the description of the section, and it also knew there was no such township and range in said county.
This is not a case of imperfect or insufficient description of personal property, but just the reverse. We do not think the description was such as to put the bank on the inquiry to ascertain, as best it could, whether there had been a mistake in drafting the mortgage. Upon what principle was the bank bound to know or suppose the township and range had been transposed. Besides this, certain descriptions or calls in the mortgage must be rejected and others substituted. Why reject one of these calls more than another. Why should the bank conclude the property mortgaged was situate in Buena Yista county. Only because the mortgage made certain provisions in relation to its removal therefrom, and the mortgagor described himself as being of that county. These things should not be allowed to prevail over the positive description and location of the property. The bank could not reject any one description with more propriety than another, except that such as were definite and certain should be allowed to govern its action as to making inquiry outside of the mortgage.
We think it was'not bound to do áo.
Affirmed.