Souders v. Voorhees

36 Kan. 138 | Kan. | 1887

The opinion of the court was delivered by

Johnston, J.:

The plaintiff brought replevin to recover the possession of six hundred bushels of corn, which the defendant, as sheriff, had levied on, and was holding under an attachment and an execution. In 1883, Thomas Burnside was the owner of a growing crop of corn, and on September 18,1883, he executed a chattel mortgage upon a portion of the growing corn to secure the payment of $119.75 which he owed to the plaintiff. In the following month the corn was seized by the defendant; and the validity and regularity of the process under which it was taken is conceded. The plaintiff claims the property under the chattel mortgage, and the sole question presented for decision is, whether the mortgage is void for uncertainty in the description of the property intended to be conveyed. The description given in the mortgage is:

“Six hundred bushels of corn, growing, located and being upon the west half of section thirty-six, town three south, of range eight east. If said corn matures before the maturity of the note secured in this mortgage, the said Burnside to shuck the same and put in cribs on the premises above described.”

We regal’d the description to be insufficient. The corn was green and growing when it was mortgaged, and remained in the possession of the mortgagor until it was levied on. There was no identification of the corn when the mortgage was made, and no portion was ever designated or set apart as that which was mortgaged or intended to be mortgaged. There was considerable more corn on the tract described than the quantity mentioned in the mortgage. It was not uniform in quality or in value, as it is stated as a fact that some portions of the crop were good in quality, others very inferior, and on still other parts of the tract there were only stalks and fodder. How then was the corn to be designated ? What portion of the tract was the mortgaged corn to be taken from ? What quality of corn was conveyed — the good, the inferior, or the very inferior ? By whom was the separation or selection to be made? In what way could the description be made definite and certain ? Counsel for plaintiff have not satisfactorily anwered these questions. The general rule of law is, that the mortgage of a number of articles out of a larger number is void for uncertainty when the particular articles intended to be conveyed are not separated or designated in any way so that they can be distinguished from others of the same kind. (Jones on Chattel Mortgages, § 56.) In Savings Bank v. Sargent, 20 Kas. 576, it was said that —

“The description of property in a chattel mortgage, to be good, should contain either some hint which would have directed the attention of those reading it to some source of information beyond the words of the parties to it, or something which will enable third persons to identify the property, aided by inquiries Avhich the mortgage indicates and directs, or a description which distinguishes the property from other similar articles.”

There was nothing in the description here given which would enable anyone to identify the property covered by the mortgage, nor was there anything on the face of the instrument that would afford a clue by which the part intended to be conveyed could be distinguished from that reserved. It is unlike the cases where the whole or some aliquot part of a crop growing on a definite tract is conveyed; and as the com included in this mortgage is a part of a greater quantity made up of different grades and values, it is unlike a case where the articles mortgaged are a definite part of an ascertained quantity of uniform quality and value; and therefore the cases relied on by the plaintiff are plainly distinguishable from the ¡^resent case. In Brown v. Holmes, 13 Kas. 482, there was a description of the age and kind of the cattle intended to be conveyed, and where and by whom they were held. This, with inquiries suggested by the mortgage, was sufficient to enable third persons to identify the property, and the same may be said of the description that was given in the case of Mills v. Kansas Lumber Co., 26 Kas. 574. In Shaffer v. Pickrell, 22 Kas. 619, the property designated was “two hundred and fifty stock hogs, owned by the said D. B. Mott, in Franklin county, Kansas.” It was urged there, that as the mortgage and the record in the case did not show but that the mortgagor had other hogs of the same description, that the mortgage was void for uncertainty. The court held that the doubts, if any, on that score, should be resolved in favor of the validity of the instrument instead of against it, and decided the case upon the theory that the hogs designated were all the mortgagor had of that description; and hence they were capable of identification. Neither does Sims v. Mead, 29 Kas. 124, give any support to the plaintiff’s theory; for there the description was an undivided two-thirds of a crop of wheat growing on a tract that was definitely described, so that there could be no doubt regarding the interest conveyed. None of the cases cited by plaintiff furnish any light or any rule by which the identity of property described as was that in this ease may be ascertained, and unless it is described so as to be capable of identification the mortgage must be held void for uncertainty. . (Tootle, Hanna & Co. v. Lyster, 26 Kas. 589; Savings Bank v. Sargent, 20 id. 576; Golden v. Cockrill, 1 id. 259; Richardson v. Alpena Lumber Co., 40 Mich. 203; Hires v. Hurff, 39 N. J. L. 4; Fowler v. Hunt, 48 Wis. 345; Muir v. Blake, 57 Iowa, 662; Williamson v. Steel, 3 Lea, 527; Herman on Chattel Mortgages, §42; Jones on Chattel Mortgages, § 56.)

Judgment affirmed.

All the Justices concurring.