Plano Manufacturing Co. v. Griffith

75 Iowa 102 | Iowa | 1888

Rothrock, J.

i chattelmort ' gage: insufflcient description : paroi evidence to noticeaotual — I. . The mortgage upon which the plaintiff relied was indefinite in its description. It described the mortgaged property as “one six 1-2 foot cut Plano harvester and binder.” it contained no other words of description. x That this description was insufficient to charge third persons with constructive notice of the mortgage there can be no question. See Hayes v. Wilcox, 61 Iowa, 732 ; Rhutasel v. Stephens, 68 Iowa, 627; Ormsby v. Nolan, 69 Iowa, 130 ; and many other cases in this court. In all these cases the question arose between the mortgagee and persons who acquired rights from the mortgagor as purchasers, or attaching or execution creditors, and it was held that the mortgagee could not by parol evidence add to the mortgage by showing what property was intended to be included therein. It has also been held that this rule excluding parol evidence has no application, and that such a mortgage is not void for indefiniteness, as against the mortgagor or his attaching creditor having actual notice of the mortgage and of the property claimed under it. Clapp v. Trowbridge, 74 Iowa, 550. The plaintiff in this case introduced parol evidence which tended to show that long before the execution was levied one of the members of the firm of Minor & Jones had actual notice that promissory notes were taken of Shaver by the plaintiff for the harvester and binder, and that he had given the plaintiff a mortgage on the same to secure the payment of the notes. Other evidence was introduced by plaintiff, which tended to identify the machine levied upon by the defendant as the same one sold by the plaintiff to Shaver. Thereupon the plaintiff offered the mortgage in evidence. The defendant objected upon the ground, in substance, that the mortgage was void for want of a sufficient description of the property. The objection was sustained. Thereupon the defendant requested the court to instruct the jury to return a verdict in his favor, which was done.

I. Under the rule announced in Clapp v. Trowbridge, supra, the exclusion of the mortgage as evidence was erroneous. The cited case is exactly in point. See, also, Cummings v. Tovey, 39 Iowa, 195. We are aware that mortgages like the one under consideration have been said to be void, and it is contended by counsel for appellee that, if void, no validity can be imparted to them by the introduction of parol evidence. It will be observed that in all the cases relied upon by appellee the contest was not between the mortgagee and mortgagor, or one having actual notice of the mortgage. In the case of Barr v. Cannon, 69 Iowa, 20, the question as to the effect of actual notice of a defective mortgage was not really in the case, and it is apparent that what is said in reference thereto in the opinion was in the way of argument only. In Ormsby v. Nolan, supra, the question is neither determined nor discussed in the opinion.

g . . erty" °n.r?5°p' ofieyyVidenoe II. It is claimed by the appellee that the judgment should be affirmed because the record does not show that the'defendant ever levied upon or sold ^le harvester and binder. This cannot avail aPPe^ee* U would have been a work of supererogation for appellant to introduce evidence that defendant seized and sold the harvester after it was determined by the court that the plaintiff’s mortgage was void, and that no right could be asserted thereunder. For the error in excluding the mortgage from the consideration of the jury, and directing a verdict for the defendant, the judgment is

Reversed,