Kelly v. Reid

| Miss. | Oct 15, 1879

George, C. J.,

delivered the opinion of the court.

The plaintiff in error is the trustee in a mortgage, in which the property attempted to be conveyed by it was described in these words: “ The following described real and personal estate-lying and being in the County of Madison and State of Mississippi, to wit: 30 head of cattle, 6 oxen, 3 horses, 2 mules, 3 wagons, 50 hogs, also all the crop of cotton, corn, fodder, and potatoes, and all other produce which may be raised on the O’Reilly place in said county.” After this mortgage was recorded, the defendant in error recovered a judgment against the mortgagor, and levied his execution on the cattle, horses, and mules in his possession, and which are claimed to be embraced in the mortgage, and insisted that the mortgage is void as to this property, because of the insufficiency of the description. This view was sustained by the court below, and hence this writ of error.

While it is true that it is difficult, if not impossible, to describe in a mortgage this species of property, so as to determine with certainty whether any particular property of that class is that embraced in the mortgage, without resorting to evidence aliunde, jmt the mortgage must mention some fact or circumstance connected with the property which will serve to distinguish it from all other property of the same kind. This fact or circumstance must be stated in the mortgage itself, it cannot he proved by parol evidence without thereby adding to the mortgage a term not contained in it. When thus stated, its existence in connection with the property may be established by extrinsic evidence. The object of a mortgage is to create a lien on certain specific property, and not to give a right to the delivery of any property whatever of the particular kind mentioned in it. The claim of the mortgagee is to have his lien enforced on the identical property mentioned in the mortgage, and if the description in that instrument be so vague and uncertain as necessarily to apply equally to all property of that kind, then it is clear that there can be no identification of it, without proving some fact or circumstance con-neeted witb tlie property not referred to in the mortgage. Thus in this case, if the mortgagor had surrendered to the trustee any thirty head of cattle which were in Madison County at the date of the mortgage, the terms of that instrument, so far as that part of the property is concerned, would have been complied with. The trustee could not have objected that they were not the cattle owned at the time by the mortgagor, and to which it was intended that the lien should attach, because there is nothing in the description of the property in the mortgage to indicate that ownership was annexed to the property as a mark of identity.

The fact of the ownership or locality of the property, or some other mark, which, when proved to exist, would separate and distinguish it from other property, should have been mentioned in the mortgage. Thus if the mortgage had been written, “ my stock of cattle, consisting of about 30 head; my 2 mules, and my 3 horses,” &c., or u the stock of cattle on the O’Reilly place, consisting of 30 head,” &c., it would have been sufficient, provided the stock of cattle and the mules and horses did not exceed the number stated; or if the mortgage indicated an intent to convey the whole stock or all the horses and mules without reference to the number. A proper mode to describe property of this sort, when all the property of that kind owned by the mortgagor, or all on a particular place, is intended to be conveyed, would be to say, “ all my stock- of cattle, consisting of about 30 head, and all my horses and mules, consisting of 2 head of the former and 3 head of the latter.” When a precise number only is conveyed, and there is in fact a greater number, and no intention is manifested to include the whole, there would be a failure to identify the particular animals conveyed, and the deed would be void for want of a proper description. For these reasons, the description in the mortgage in controversy is held to be void.

It is proper for me to state that my own views, at first, were adverse to the conclusion here reached. It has been shown that, if the ownership of the property by the grantor had been stated in the mortgage, it would have been sufficient, as the proof is that he owned at the date of the mortgage the exact number of cattle, oxen, horses, and mules mentioned in it. It occurred to me that as the whole object of the mortgage was to give a lien on property, and as it is impossible for a mortgagor to give a lien on property not his own, the mere giving of the mortgage must be understood as an assertion by the mortgagor of ownership in the property, and therefore that the mortgage ought to be construed as if this necessary implication were expressed in it, otherwise the whole transaction would be an unmeaning ceremony. But the convictions of my associates are so strong that this construction is unwarranted, that I am induced to believe that my first impressions were erroneous. Judgment affirmed.