181 S.W. 271 | Tex. App. | 1915
Lead Opinion
The sixth, seventh, eighth, ninth, and tenth assignments are only reiterations as to the description of the cow, and they are overruled.
The judgment is affirmed.
&wkey;5Por other oases see same topic and KEY-NUMBER in all Kev-Numbered Digests ana Indexes
Lead Opinion
Appellee sued G. W. Vaughn, as principal, and Arthur Ivy, as surety, on a promissory note and to foreclose a chattel mortgage on a certain Jersey cow. Judgment was obtained for $358.35, and the foreclosure had, and an order of sale issued, and the cow seized. Appellant filed a claimant's affidavit and bond, and the cause was tried in the justice's court, and then appealed to the county court, where judgment was rendered for appellee in the sum of $110. It *272 is the contention of appellant that the description in the mortgage was too vague and indefinite to furnish identification of the cow and that he was therefore an innocent purchaser without notice. The description was, "One Jersey cow, unbranded, bought from Willie Gardner, Asherton, Tex.," and it is not contended that the sheriff had any difficulty in locating the cow, and it is admitted that he had her in his possession under the order of sale, when she was claimed by appellant. The evidence seems to intimate that vaughn had no other cow. The description was sufficient, the mortgage being duly registered, to put appellant upon inquiry before he bought the cow from Vaughn. He was charged with constructive notice that Vaughn had mortgaged a Jersey cow, that he bought from one Gardner, to appellee, that the mortgage had not been satisfied, nor the debt settled.
Descriptions in mortgages are to be interpreted in the light of the facts known and before the minds of the parties at the time of their execution. Parol testimony is admissible to aid the written description, such as that the mortgagor had no other property, or like evidence. National Bank v. National Bank,
The second, third, fourth, and fifth assignments, although on different matters, are grouped, and should not be considered. However, it may be stated that a consideration of them shows that each and all of them are without merit.
The sixth, seventh, eighth, ninth, and tenth assignments are only reiterations as to the description of the cow, and they are overruled.
The eleventh assignment of error complains of the refusal to give a certain charge on the subject of notice which eliminated constructive notice altogether. It did not embody the law applicable to the case and was properly refused. As said by appellants, there is but one question in the case, that as to the description of the cow, which we hold was sufficient.
The judgment is affirmed.
"Written descriptions are to be interpreted in the light of the facts known and in the minds of the parties at the time. They are not prepared for strangers, but for those they are to affect — the parties and their privies."
The description in the chattel mortgage was sufficient to put appellant upon inquiry, and by such inquiry he could have learned that the cow he intended to buy had been mortgaged by Vaughn to appellee. It does not appear that he even asked Peddicord how he obtained the cow. Blythe v. Crump,
Appellant bought the cow from Peddicord, and made no inquiry as to how he came in possession of the cow, and did not make inquiries of any one or consult the records. Doubtless, if he had asked Peddicord from whom he obtained the cow, he would have learned that Vaughn had sold the cow, and then the chattel mortgage notified him that Vaughn had mortgaged a Jersey cow, and further inquiry would have given him the knowledge that the cow held by Peddicord was the identical animal mortgaged by Vaughn. Instead of such vigilance, he trusted in Mr. Peddicord, who "stood well in the community and was reputed to be worth $42,000." No matter how accurately the cow may have been described, if appellant's trust and confidence in Mr. Peddicord can transform him into an innocent purchaser, appellee would lose its security.
It is not necessary that mortgaged property should be so described as to be capable of being identified by the written recital, but the description is sufficient if it points to evidence whereby the precise thing mortgaged may be ascertained. Jones on Chattel Mortgages, §§ 53 and 54; Frick v. Fritz,
"Resort must be had in nearly all cases to other evidence than that furnished by the mortgage itself, to enable third persons to identify mortgaged property; and generally where there is a description of the property mortgaged, and the description is true, and by the aid of such description, and the surrounding circumstances, the third person would, in the ordinary course of things, know the property that was mortgaged, the description should be held to be sufficient."
The description in that case was "one bay horse, aged six years."
*478The motion for rehearing is overruled.
Rehearing
On Motion for Rehearing.
As said by the Supreme Court in Bank v. Bank, 84 Tex. 369, 19 S. W. 567, in discussing a description of- cattle in a mortgage:
“Written descriptions are to be interpreted in the light of the facts known and in the minds of the parties at the time. They are not prepared for strangers, but for those they are to affect—the parties and their privies.”
The description in the chattel mortgage was sufficient to put appellant upon inquiry, and by such inquiry he could have learned that the cow he intended to buy had been mortgaged by Vaughn to appellee. It does not appear that he even asked Peddicord how he obtained the cow. Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S. W. 885. In the case cited the contest was between a man claiming to be an innocent purchaser and the mortgagee, and the court held that the description, “two gray mares sold by Sirup-trine to Vandiver,” was sufficient to excite inquiry.
It is not necessary that mortgaged property should be so described as to be capable of being identified by the written recital, but the description is sufficient if it points to evidence whereby the precise thing mortgaged may be ascertained. Jones on Chattel Mortgages, §§ 53 and 54; Frick v. Fritz, 115 Iowa, 438, 88 N. W. 961, 91 Am. St. Rep. 165; Scrafford v. Gibbons, 44 Kan. 533, 24 Pac. 968. As said in the Kansas case (Mills v. Kansas Lumber Co., 26 Kan. 579):
“Resort must be had in nearly all cases to other evidence than that furnished by the mortgage itself, to enable third persons to identify mortgaged property; and generally where there is a description of the property mortgaged, and the description is true, and by the aid of such description, and the surrounding circumstances, tho third person would, in the ordinary course of things, know the property that was mortgaged, the description should be held to be sufficient.”
The description in that case was “one bay horse, aged six years.”
The motion for rehearing is overruled.