Tindall v. Wasson

1 Ind. L. Rep. 208 | Ind. | 1881

Lead Opinion

Elliott, J.

The appellant instituted this action to recover certain personal property described in the complaint as “two brown female mules.” The appellee answered in four paragraphs, and the question which this appeal presents is, whether the second paragraph of the answer stated facts sufficient to constitute a defence.

The paragraph of the answer referred to contains, in substance, these allegations : That the only claim or right of the plaintiff to the property in controversy is founded upon a chattel mortgage, executed by one Gore on the 7th dav of January, 1871; that the property was described in said chattel mortgage as follows : “Two mule colts one year old next spring;” that this ivas the only description of the mules in said mortgage; that the mortgagor, after the execution of the mortgage, sold the mules to Elijah Goodwin ; that Elijah Goodwin sold to Nelson Goodwin ; that the appellee afterward bought the mules of Nelson Goodwin for a valuable consideration ; that he had no knowledge of the existence of appellant’s mortgage. We have given only a mere outline of the answer, but one sufficient to present the question discussed by counsel, and upon which the case turns. The sole question discussed is as to the sufficiency of the description of the property, which the answer alleges is contained in the mortgage.

Appellant cites in support of his position, that the mortgage sufficiently describes the property, three cases, which we will briefly consider. In Duke v. Strickland, 43 Ind. 494, the description in the mortgage was, as we gather from the opinion in that case, “a ten-acre field of growing wheat on the northwest quarter of the southwest quarter, of section thirty-four, township eighteen, range ten. in Henry county, Indiana.” It will be observed that in the case cited the locality of the property was particularly pointed out, and the means of identifying it clearly supplied. It is true that the inference deducible from the fact that the case referred to expressly overrules the earlier case of McCord v. Cooper, 30 Ind. 9, goes very far toward supporting the theory of the appellant. In the overruled case, the description of the property was “three yoke of oxen,” and there was no locality or other circumstances of identity mentioned. It seems to us that there was no real conflict between the two cases, for in the former there were circumstances of identification which were altogether wanting in the latter. In Ebberle v. Mayer, 51 Ind. 235, the description in the mortgage was as follows: “All the stock, tools, fixtures and materials now on hand in the shop formerly occupied by said Kreber & Co., on Central avenue, in the city of Madison, Ind., and being the same property this day sold to us by said Kreber & Co.” This was held a sufficient description, upon the authority of Duke v. Strickland, without any discussion or citation of cases. It will be noticed that, as in the case upon which it is based, there is in the mortgage passed upon by the case referred to, a statement of locality and other matters of identification. In this respect the cases of Duke v. Strickland and Ebberle v. Mayer are essentially different from the case in hand. In Smith v. McLean, 24 Iowa, 322, the description in the mortgage was “five freight wagons, and twenty-five yoke of cattle being the train now in my possession,” and it was held sufficient. It was there said: “That description which will enable third persons, aided by inquiries which the instrument itself indicates and directs, to identify the property, is sufficient.” The doctrine declared in the extract quoted is well sustained by authority. The general rule is plain enough, but the difficulty is to determine, in each particular case, what description is sufficient to indicate and direct inquiries which will result in the identification of the property. In the case under consideration, there are no circumstances of identification named except such as may be found, if any can be found, in the.words “two mule colts one year old next spring.” This description certainly does not indicate any particular mule colts, for it would apply to any mule colts in the world which would be one year old the spring following the execution of the mortgage. If one had undertaken to find the particular mules mortgaged, by means of “inquiries indicated and directed” by the description in the mortgage, his field of inquiry would have been a very wide one, for with the exception of the statement of the age there is not a single circumstance of identification stated.

We are not attempting to lay down any general rule in the present case, but confine ourselves to the decision of the precise question presented. The answer avers, and the demurrer admits, the truth of the allegation, that “the only description contained in the mortgage is, ‘two mule colts one year old next spring.’ ” There are no circumstances of identity stated, neither locality, ownership, nor anything else affording means of identification. The description we have given stands alone and unaided. We hold such a description as that contained in the mortgage and stated in the answer, to be insufficient. If it were aided by any circumstance or matter of identification which would enable the description .to be made certain by parol evidence, it would be otherwise.

A copy of the mortgage is filed with the answer, but, as it does not constitute the foundation of the paragraph, we can not examine it, either for the purpose of sustaining or overthrowing the pleading.

Judgment affirmed.

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Rehearing

On Petition for a Rehearing.

Elliott, J.

A petition for a rehearing has been filed, calling our attention to the case of Burns v. Harris, 66 Ind. 536, .and insisting that our ruling in this case is in conflict with the case cited. We carefully examined the cases cited in appellant’s original brief, and supposed they were the only ones upon which he relied as being applicable to the points made by him, and as he did not call our attention to the case now cited, it received no examination from us. This case, and the only case cited in the brief of counsel on this petition, is the one to which we have referred. The question in that case arose upon the evidence, and not, as here, upon the pleading. Iin the original opinion in this case, we said: “We are not attempting to lay down any general rule in the present case, but confine ourselves to the decision of the precise question presented. The answer avers, and the demurrer admits, the truth of the allegation, that ‘the only description contained in the mortgage is, “two mule colts one year old next spring.” ' It is true, by the appellant’s concession, that there was no other description given or information furnished than such as the words, “two mule colts one year old next spring,” gave and supplied. There were no circumstances of identification, nothing to enable a third person to identify the property intended to be mortgaged. The answer excluded the inference that there were any such circumstances. A careful examination of the authorities has satisfied us that the conclusion reached in the original opinion is correct. In Golden v. Cockril, 1 Kan. 259, the description was “one hundred and twenty-four head of mules now in the territory of Kansas,” and “one pair of claybank horses,” and it was, held insufficient. In another case the description was ‘ ‘ten new buggies,” and it was held to be not sufficient as against purchasers in good faith. Blakely v. Patrick, 67 N. C. 40. In Ellis v. Martin, 60 Ala. 394, the description was, “my entire crop of corn and cotton of the present year,” and it was held not good. The property in controversy in Montgomery v. Wight, 8 Mich. 143, was described as ¿‘one sorrel horse,” and this was declared to be an insufficient description. But we think it unnecessary to further comment upon the cases. There are very many sustaining the rule declared in the cases already cited; among them, Kelly v. Reid, 57 Miss., 89; Bowers v. Andrews, 52 Miss. 596; Rose v. Scott, 17 U. C. Q. B. 385; Parsons Savings Bank v. Sargent, 20 Kan. 576; Winter v. Landphere, 42 Iowa, 471; Richardson v. The Alpena Lumber Co., 40 Mich. 203; Newell v. Warner, 44 Barb. 258; Fowler v. Hunt, 48 Wis. 345; Rowley v. Bartholomew, 37 Iowa, 374. A late writer, in speaking of the description, says : “But the mortgage to be effectual must point out the subject-matter of it, so that a third person by its aid, together with the aid of such inquiries as the instrument itself suggests, may identify the property covered.” Jones Chattel Mortgages, sec. 55. In the case now in hand the mortgage, according to the admitted allegations of the answer, suggests no inquiry whatever beyond that suggested, if any can be said to be suggested, by the vague and indefinite clause, “two mule colts one year old next spring.” Nothing at all is added to these words; not a single circumstancd*whichwill suggest or aid inquiry. The answer in effect negatives, the existence of any extrinsic circumstances of identity.

Tf the appellant had replied to appellee’s answer showing any circumstances of identification, a very different question would have been presented; but instead of that counsel assarmed the unnecessary hazard of conceding the truth of the strong allegations of the answer, and can not now treat ■the question, as counsel endeavor to do, as one of evidence. .It is not doubted that parol evidence is admissible to aid in identifying the mortgaged property. There is no hint of a -contrary doctrine in the opinion already delivered, nor was there any thought of declaring any such thing.

In the case of Burns v. Harris, supra, the question as to the sufficiency of the mortgage came up on the evidence, and was presented very differently from the question arising here. In that case the mortgage was given in evidence, without objection, and parol evidence was introduced to identify the property; and it was there said by Howk, J., that ‘ ‘in such a mortgage the property ought to be described with reasonable accuracy, certainty, and particularity, so that the property intended to be mortgaged may be readily .ascertained and identified. Indeed, the main object of the •description is the identification of the property; for where the description is doubtful or uncertain the property may be identified beyond all doubt by the ownership and possession thereof by the mortgagor. It must be regarded as settled law in this State that parol evidence is admissible to identify the particular property in a chattel mortgage.” This we deem a correct statement of the law, but it does not mean, .as appellant seems to think, that any description, no matter how slight, will be sufficient. The language quoted conveys ;no such meaning. It means that parol evidence may aid, mot make, a description. In cases where the instrument suggests and indicates proper inquiry, parol evidence is always admissible to aid, but not to supply, a description. Properly understood, the language we. have quoted is in entire harmony with the rule declared by the eminent author we have quoted from. Says this author, in speaking of the admissibility of parol evidence : “It can not be used to supply what the parties have omitted, or to reject a reference* in the description which is true.” Jones Chattel Mortgages,, sec. 64. The infirmity in the description exhibited by the answer is that it does not supply any circumstances of situation,, of place, or indeed circumstances of any character, to afford information or suggest inquiry. Returning to the case of Burns v. Harris, we find that the judge who delivered the opinion of the court said: “In the case at bar there is no room for doubt, on the evidence, as to the identity of the mare mortgaged to the appellee, with the mare in the possession of the appellants, and in controversy in this action.. The question in dispute was as to the color of the mare,— whether she was a ‘darkbay mare,’ or a ‘darkbrown mare.’ ”' It was also said: ‘ ‘A chattel mortgage, wherein the mortgaged chattel is described as a ‘dark bay mare/ is not void for uncertainty in the description of the chattel.” As applied to the question presented upon the evidence, with all-' the circumstances of ownership and location before the court,, the statement was entirely correct. But the case in whiclr that language was used, and the facts to which it was intended to apply, are widely different from the case we have in hand. Here there is, as is expressly conceded, not a solitary circumstance to aid the description, which in itself is* about as vague and indefinite as a description could very well be. If there had been, as doubtless there might have been, had counsel pursued the usual course, evidence offered in aid of the description, it might have been made sufficient. Without some such aid, the description is so indefinite as to; supply no grounds of identifying the mortgaged property,, for taken alone it would apply to any “mule colts one year-old” in the spring of 1871. ’

Counsel treat the case as if it, were one between a mortgagor and mortgagee, when it is in fact one between the mortgagee and a bonct fide purchaser without actual notice. In- such a case there must be such a description as will impart sufficient information to the purchaser to enable him, by inquiries suggested by the instrument itself, to identify the property. The peculiar frame of this answer excludes any inference that there was any such information imparted by the record.

If appellant had replied, showing circumstances of identification, a very different question would have been jiresented, but instead of doing this he confessed by his demurrer that such circumstances did not exist. The effect of his demurrer was to concede that the only means by which the property could be identified were furnished by the description in the mortgage, and it is plain that nothing therein contained served to distinguish the mule colts named, not described, from any others of like age, owned by the mortgagor or anybody else.

Petition overruled.