Wells v. Wilcox, 68 Iowa 708

Wells v. Wilcox

68 Iowa 708 | Iowa | 1886

Beck, J.

mortgage: descriplion of property; eient. I. The plaintiff, in his petition, claims the possession and title of the property replevied, under a chattel mortgage, and alleges that defendant wrongfully and unlawfully detains the same, claiming to hold ° it by virtue oí the levy of an execution.thereon issued upon a judgment against the mortgagor. The petition sets out, as an exhibit, the chattel mortgage under which plaintiff claims the property. The defendant demurred to the petition on the following grounds: “(1) That the description of the property in the mortgage relied upon by the plaintiff is insufficient to impart notice to third parties by the recording of the same; (2) for that the descrip*709tion in tbe said mortgage fails to locate the property, and the recording of the same for that reason would not impart notice to third parties; (3) for the reason that the facts stated in the petition, and the copy of the mortgage attached as an exhibit, are not sufficient to impart notice that the property levied upon is the identical property mortgaged, as to third parties; (4) for that the mortgage relied upon by the plaintiff, a copy of which is attached to plaintiff’s petition, is so defective in the description of the same, and in the location of the property, that the recording of the instrument, as alleged in plaintiff’s petition, would not impart notice to third parties.” The mortgage shows that the mortgagor is a resident of Hardin county, and a list of the property conveyed is set out in the instrument. The property consists of horses, buggies, carriages, wagons, sleighs, harness, etc., usually found in a livery stock. Many of the articles are to some extent designated or described by their names; others are no further described than the mention of the article or animal in a general way. The property involved in this suit is described in this manner. It constitutes but a part of the property covered by the mortgage. It contains these descriptive words immediately following the list, “the above-described property, now in my posession,” and provides that, in case of the mortgagor’s “ attempting * * * to remove from said county of Hardin the aforesaid goods and chattels, or any part thereof,” it shall be lawful for the mortgagor to take possession of the property.

THB SA1&I2* II. In our opinion, the mortgage sufficiently describes the property to lead to its identification upon inquiry suggested by the instrument; and that is sufficient. It plainly shows that the }:>roperty was, when the mortgage t # _ was executed, m the possession of the mortgagor in Hardin county. A description no more certain and explicit has been held sufficient by this court. Smith v. McLean, 24 Iowa, 322. See Eddy v. Caldwell, 7 Minn., 225; (Gil., 166;) Rhutasel v. Stephens, ante, p. 627. Descrip*710tions held by this court void for uncertainty failed to direct inquiry for the identification of the property, by omitting to show in whom the possession of the property was when the mortgage was executed, or gave no means of identification, further than the bare statement of the species of the property or its kind, with marks that could as well apply to other property. See Hayes v. Wilcox, 61 Iowa, 782; Muir v. Blake, 57 Id., 662. Where the description of the property in controversy differs from the description in the mortgage, and no other means of identification are shown, the property is not bound thereby. Ivins v. Hines, 45 Iowa, 73; Rowley v. Bartholemew, 37 Id., 374. As to sufficiency of a description of property conveyed in a chattel. mortgage, see Yant v. Harvey, 55 Iowa, 421. In our opinion, the description of the property contained in the mortgage is sufficient.

III. Counsel for defendant insist that the description is insufficient, for the reason that it fails to show the “locus ” of the property, using the word employed by counsel to express the thought. Without determining that it is necssary to the validity of the description that the place where it was when the mortgage was executed should appear in the instrument, such objection cannot be urged in this case; for, as we have pointed out, it is clearly shown that the property, when mortgaged, was in Hardin county. This sufficiently complies with the rule urged by defendant’s counsel. But the “locus ” of the property, using counsel’s language, did not appear in the mortgage involved in Smith v. McLean, supra.

2. pleading: Mbit. oi ex IT. Counsel insist that, as the petition does not allege that the property was in the possession of the mortgagor, the third ground of the demurrer was well taken. There are two ready answers to this position: (1) The mortgage is made an exhibit to the petition, and is a part thereof. Whatever is contained or properly recited in it is regarded as averred in the petition. (2) The third count in the demurrer is based upon the ground that the facts *711stated in tbe petition and mortgage are not sufficient to impart notice of the identity of the property levied upon with that mortgaged. But it will be understood, upon a mere suggestion, that the petition has nothing to do with “ imparting notice.” The mortgage which is set out in the petition, after registry as required by law, was sufficient to impart notice to the world of the property conveyed.

The foregoing discussion disposes of all questions in the case. The judgment of the circuit courtis

Affirmed.