36 Kan. 138 | Kan. | 1887
The opinion of the court was delivered by
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
“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
Judgment affirmed.
