Bank of Vernal v. Bank of Grand Junction

Mr. Justice Allen, sitting for Mr. Chief Justice Teller, delivered the opinion of the court. This is an action brought by the Bank of Grand Junction against George Kritsas to recover the sum of approximately $9,000 alleged to be a balance due on promissory notes. A writ of garnishment was issued against the Bank of Vernal and Clay, Robinson & Co., as garnishees. There was a judgment against the garnishees and they bring the cause here for review. Disregarding immaterial details, the facts admitted or established are as follows: George Kritsas, the defendant, gave a chattel mortgage to the Bank of Vernal upon 800 head of sheep, and a chattel mortgage to Clay, Robinson & Co. upon 1350 head of sheep, and other property not now involved. The two mortgages covered all the sheep owned by the mortgagor. The herd, consisting of the 2,150 sheep above mentioned, became depleted until it was composed of only 1,700 sheep. These 1,700 animals were, at the time these proceedings were instituted, in the joint possession of the two mortgagees. *450 If each mortgagee was in possession exclusively of such, and only such, property as was mortgaged to him or it, respectively, it is conceded that the mortgages would each be valid, not only as between the parties, but third persons as well. A defective description is cured by subsequent delivery of the property to the mortgagee, as against persons who had no right or interest in the property at the time of the delivery. 11 C. J. 472; Horn v. Reitler, 12 Colo. 310, 21 Pac. 186. The reason for the rule is that the taking of possession is an identification and appropriation of the specific property to the mortgage. Marsh v. Wade, 1 Wash. 538, 20 Pac. 578. The contention of defendant in error is, in effect, that the joint possession of the two mortgagees did not so identify the property mortgaged to each party as to cure the defective description. The fact remains that the property in the joint possession of the two mortgagees was all the property mortgaged by the mortgagor, and was also all the property of that character owned by him. It follows that none of the property so held by the mortgagees was free from one or the other of the chattel mortgages. There was, therefore, no property, not mortgaged, which an attaching creditor could seize. For the reasons above indicated, we hold that the chattel mortgages, and each of them, are valid, not only as between the parties to them respectively, but also as against the plaintiff. The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Mr. Justice Denison and Mr. Justice Whitford concur.