Barr v. Cannon

69 Iowa 20 | Iowa | 1886

Beok J.

i chattel sumcientde-" senption. I. The defendants in their answer to the petition allege that they were owners of the corn in controversy, and in possession of it under a chattel mortgage, of which plaintiff had full notice, and deny that plaintiff made a levy upon the corn. The district court correctly held that the defendant’s mortgage was invalid, upon the ground that it does not sufficiently describe the property intended to be conveyed; the description being “all the grain, oats, wheat, flax and corn raised ” on certain land. The mortgage fails to state the year or time in which it was to be raised. A. similar instrument, wherein the description of the property conveyed was identical with the description in the conveyance involved in this case, was held by this court invalid. The description is not sufficient to raise inquiry which could lead to the identification or discovery of the property intended to be conveyed. The instrument is therefore void for uncertainty. The rulings of the district court to this effect must be sustained. Eggert v. White, 59 Iowa, 464; Pennington v. Jones, 57 Id., 37.

2.nxp.oTjTioir: ing'corn. ‘ II. It is urged by counsel that the sheriff’s levy was not sufficient to bind the property, for the reason that the officer did not take actual possession of the property, The corn levied upon was in the field, ungathered. Prior to the levy the sheriff notified the defendants in this case of his purpose to levy on the corn, and just before or at the time of the levy he notified the defendant in execution that he was about to make the levy. He went into the field for that purpose. It appears that he did all that could have been done in order to take possession of the property and to notify persons interested of the fact that he had made the levy. It is not usual for owners of corn-fields to keep a watch and guard over them. They retain possession without such precautions. The sheriff having taken possession of the corn would retain it by pursuing such course as owners of property usually take to retain possession.

3. CHATTEL vaMf^rop-1" llverac??46’ actual notice. III. Counsel for defendants insist that the possession of the property, at the time of the levy, was held by defendants. They claim that the execution defendant was in J possession as the agent of defendants. The facts relied upon to support this claim are that wag a contract between defendants and the execution defendant that the latter should gather the corn for the former, and that he had gathered a small part of it. But the transfer of the corn to defendants, as the mortgage was not valid, in the absence of the delivery of possession to them, was not sufficient as against persons having no notice of the transfer. Code, § 1923. The defendant in execution continued in the actual possession of the property. ‘

IT. The defendants based their claim to the corn upon the chattel mortgage, and the surrender of the property to them, and their possession thereunder. The defendants now complain that the district court failed to instruct the jury upon defendants’ claim of possession and ownership. The instructions correctly direct the jury as to the effect of ownership and possession acquired by defe'ndants before the levy, and, we think, present with sufficient fullness rules applicable to the case as made by the pleadings and evidence.

V. The mortgage, as we have seen, is void for uncertainty. Actual notice of the execution or existence of the mortgage upon the part of plaintiff would not have affected the rights of defendants. The mortgage being void, it would impart no right to defendants on the ground that plaintiff or the execution creditors had actual notice of its existence.

YI. The point is made in defendants’ argument that the court erred in failing to direct the jury “that notice to the sheriff before the levy would be notice to the appellee.” The notice here referred to is probably notice of the mortgage, or notice of the delivery of the corn to defendants, or notice of both. We confess that we fail to see any force in the objection, as the sheriff is appellee. Whatever the court said on the subject contemplated notice to plaintiff, who is the sheriff and the appellee.

The foregoing considerations sufficiently dispose of objections raised aud argued in the case, all of which are based upon alleged errors in rulings upon instructions, and in the refusal of the court below to set aside the verdict on the ground that it is not supported by the evidence.

The judgment of the district court is

Affirmed.