28 P. 401 | Idaho | 1891
This is an action of claim and delivery, brought by the plaintiff against the defendant for the possession of five hundred and ninety sacks of wheat. The facts as they appear in the record are as follows: On the first day of October, 1889, one James F. Davidson leased of C. A. H.. Glogaw a certain ranch situated in Latah county, Idaho, for-the term of three years from the first day of November, 1889, at a rental of one-third of the crop or yield therefrom. That on the twenty-eighth day of January, 1890, said James F-Davidson, to secure payment of the sum of $513, evidenced by three promissory notes made by said Davidson, executed and delivered to M. J. Shields & Co. a chattel mortgage upon “the crop of wheat that may be sown and grown for the year 1890-upon that certain piece or parcel of land lying and being in the county of Latah, territory of Idaho,” etc., describing the same land described in and covered by the lease from Glogaw to. Davidson, which chattel mortgage was duly acknowledged and recorded in the recorder’s office of said Latah county on the fourth day of February, 1890. Default haying been made in the conditions of said chattel mortgage, the mortgagee proceeded to foreclose the same, by delivering to the defendant herein — at that time sheriff of Latah county — an affidavit and notice as required by statute, and directing him to take into his possession the property described in said chattel mortgage, and sell the same in the manner prescribed by law. The defend
The appellant specifies twenty-four, errors in his assignment. We shall consider and pass upon such only as we deem material to the settlement of the law of the case. The plaintiff predicates his right to recover in this case upon a certain writing executed by James F. Davidson to plaintiff on the first day of March, 1890, and which appears in the record, as follows:
“March the first, eighteen hundred and ninety.
“This is to certify that James F. Davidspn has subleased the Glogaw ranch to Joseph H. Pierce, and he agrees to fulfill the agreement stated on the other side, with Glogaw, for the year 1890 to December, 1890.
“[Signed] JAMES F. DAVIDSON.
“In witness: J. H. HENLEY.
“Witness: G. W. KIRK”
This writing, it appears, was indorsed on the lease from Glogaw to Davidson, and purports to have been executed on March 1, 1890. Plaintiff testifies: “I bargained for the place at the mill on the second day of October, 1889. I made a contract to take the land off his [Davidson’s] hands just as he had taken it from Glogaw — a verbal agreement between him and Glogaw. I moved on the place the third day of October, 1889.” G. W. Kirk, a witness called by plaintiff, and who was the attesting witness to the execution of the sublease from Davidson to plaintiff, and who was a brother in law of the plaintiff, testi
The first error urged by appellant is raised 'by the demurrer to the complaint, and is to the effect that it does not appear from the complaint that the plaintiff was in possession of or entitled to the possession of the property in dispute on the twentieth day of October, 1890 — the date of the alleged unlawful taking. 'We think this objection is too technical. The complaint alleges that on the twenty-first day of October, 1890, the plaintiff “was the owner of and entitled to” the property in question; that on the twentieth day of October, 1890, the defendant wrongfully took the same; that on the twenty-third day of October, 1890, and “before the commencement of'this action,, said plaintiff, demanded of defendant the possession thereof.” We think this sufficient as it manifestly appears by the allegation of the complaint that before the commencement of the suit the property in dispute-was in possession of the plaintiff; that, defendant wrongfully took it from his possession; and that he demanded its restoration. We think this disposes of the second allegation of error.
In the case of Gaynor v. Blewitt, 69 Wis. 583, 34 N. W. 736,. the nonsuit was granted “because of the failure of the plaintiff to show himself entitled to the possession.” It is true that the right of possession does not always follow as a necessary incident of ownership, as seems to have been the case of Gaynor v. Blewittj supra; but in this case, as shown by the evidence, the right of possession was a necessary incident of ownership. The
The third assignment of error urged by the appellant is the insufficiency of the description of the property in the complaint. The only description of the property in the complaint is “five hundred and ninety sacks of wheat.” A description of the property is sufficient if it will enable a third person, aided by inquiries suggested by the instrument, to identify the property. We do not think the description in this case comes within this rule. The description “five hundred and ninety sacks of wheat” is too slight in any case, under almost any circumstances; but in a country where whole acres, at the season of the year when this suit was instituted, are covered with sacks of wheat of uniform dimensions and appearance, it conveys virtually no information, and suggests nothing upon which an inquiry could be predicated. In the action of replevin, or claim and delivery, under the code, it is the identical property which is sought to be recovered, and the fact that a party may have a judgment for the value in case the property cannot be returned, does not avoid or render less necessary a sufficient description of the property in the complaint. (Welch v. Smith, 45 Cal. 231; Wells on Replevin, secs. 169-173; Lockhart v. Little (S. C.), 9 S. E. 511; Stevens v. Osman, 1 Mich. 92, 48 Am. Dec. 696.)
The next error urged by the appellant is the refusal of the court to give the following instructions to the jury: “A mortgage on personal property, not owned, but to be subsequently acquired, by the mortgagor, is good against him and all claiming under him.” While we believe this instruction correctly states the law, we think the court gave it in substance in his charge.
The objection to the verdict is well taken. Had the description in the complaint been sufficient, the verdict might stand, but, as the verdict refers to “the personal property described in the complaint,” and the description in the complaint is fatally defective, the verdict is not aided thereby. The same objection obtains as to the judgment.
The instructions given to the jury by the court we think give substantially the law of the ease, but the jury seems to have paid as little regard to them as to the evidence. The judgment of the district court is reversed; the ease is remanded to the district court, with directions to enter judgment for the defendant, with costs of both courts.