26 Kan. 589 | Kan. | 1881
It seems to be admitted by the parties that the only question involved in this case is, the validity or invalidity of a certain chattel mortgage. The mortgage reads as follows:
“ Know all men by these presents, that I, L. P. Getman, of Sedan, Chautauqua county, Kansas, of the first part, am indebted to Tootle, Hanna & Co., of Kansas City, Missouri,- of the second part, in the sum of one thousand seventy-two and •^3- dollars, to be paid as follows, this day below mentioned, on open account, and dated November the 26th, 1879, due in sixty days after date.
“Now, therefore, in consideration of such indebtedness, and to secure the payment of the same as aforesaid, said party of the first part does hereby sell, assign, transfer and set over to said party of the second part the property described in the following schedule, viz.: his entire stock, consisting of dry goods, groceries, hats, caps, clothing, notions, furnishing goods, queensware, glassware, cutlery, fixtures and show cases, woodenware, stove.
“ This mortgage is given by the mortgagor, and accepted by the mortgagees, subject to a certain prior mortgage on the same property, dated February 9th, 1880, given by said L. P. Get-man to Camenga & Anderson, Dye Bros., M. Liebenberg, Peter Greer, W. H. Downing, and H. M. Waters; which mortgage is first to be paid and satisfied from the sale of said stock of goods above described.
Provided, however, That if said debt and interest be paid as aboye specified, this sale and transfer shall be void. The property sold is to remain in possession of said party of the second part, until default be made in the payment of the debt and interest aforesaid, or some part thereof, but in case of a sale or disposal, or attempt to sell or dispose of the same, or a removal of, or attempt to remove the same, from where they are, or an unreasonable depreciation in the value, or if from any other cause the security shall become inadequate, the said party of the second part may take such property, or any part thereof, into their own possession. And upon taking said property into their possession, either in case of default, or as above provided, said party of the second part shall sell the same at public or private sale, and after satisfying the aforesaid debt and interest thereon, and all necessary and
In witness whereof, the said party of the first part has hereunto set his hand, this 17th day of February, 1880.
L. P. Getman.”
The defendants in error, who were defendants below, claim that this mortgage is void, for uncertainty in the description of the property intended to be mortgaged • while the plaintiffs in error, who were plaintiffs below, claim that the description of the property, as set forth in the mortgage, is sufficiently certain, and that the mortgage is valid. The court below held that the mortgage is void, and for that reason rendered its decision and judgment against the plaintiffs, who now seek to have such decision and judgment reversed.
There are a few other facts not shown by the chattel mortgage, which are necessary to be known to enable us to come to a correct determination of this question. These facts must be gleaned from the plaintiffs’ petition • and as the plaintiffs’ petition was demurred to in the court below, and’ as the demurrer was sustained, all the facts stated in the petition must be taken as true for the purposes of this case.
At the time that Getman executed the mortgage to Dye and others (which was the first mortgage), the mortgaged property was in the possession of Getman, in a certain warehouse owned by Getman, in the town of Sedan, Chautauqua county, Kansas. The mortgage described the property as being “the stock of merchandise, consisting of dry goods, groceries, queensware, clothing and notions, cutlery, hats and caps, now situate and being in the two-story frame business house now occupied and in possession of said party of the first part (Get-man), in the town of Sedan, in Chautauqua county, Kansas.” This mortgage was executed February 9, 1880, and was filed for record in the office of the register of deeds of Chautauqua county, Kansas, on February 10, 1880. The present mort
“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 which the mortgage indicates and directs, or a description which distinguishes the property from other similar articles.”
And the case further holds that a description in the words following: “One hundred and twenty-four head of mules, now in the territory of Kansas,” and “ one pair of clay-bank horses,” is not sufficient. See also Savings Bank v. Sargent,
Therefore, taking all the circumstances of the case together, we must hold that the description of the mortgaged property is not sufficient; and therefore, as between the present parties, the mortgage is void.
The judgment of the court below will be affirmed.