Cummins v. King

*378 COX, P. J. There were cross appeals in this case and the cases were docketed separately in this court, one being No. 3663 and the other 3664. We shall consider them as consolidated in this court and dispose of them as one case. This action is in replevin. A jury was waived and the case tried by the court. Judgment went for plaintiff for part of the property and for defendant for the remainder. . The costs were all taxed against defendant. Plaintiffs appealed from the entire judgment. Defendant also appealed but suggests in this court that if he be relieved from the judgment against him for costs, he will not seek a reversal in other respects. *379 The defendant, constable, levied upon the property in controversy under a writ of attachment against one F. F. Stipp. The plaintiff claimed under a chattel mortgage executed by Stipp to D. A. Cummins and also a bill of sale from Stipp to all of plaintiffs. Mr. Stipp was a tenant on the farm of D. A. Cummins but had been, unsuccessful. He became indebted to Cummins for advancements to assist him in producing a crop and gave Mr. Cummins a chattel mortgage upon the grain to be produced on the farm and also on the farm machinery which he owned. He had been on the farm for two years and had borrowed money from a bank and all of plaintiffs had signed his note at the bank as sureties for him. Some time prior to the levy of the attachment writ Mr. Stipp gave a bill of sale to all of plaintiffs for all the property involved here. After the property had been levied on under the writ of attachment against Mr. Stipp, this suit in replevin was begun. At the trial, the court found for plaintiff for the grain and for defendant for the farm machinery and taxed the costs against defendant. As we view this case, its proper determination rested upon a question of fact as to whether or not plaintiffs had taken possession of the property in controversy under the chattel mortgage and bill of sale or either of them prior to the levy of the writ of attachment. The mortgage had not been recorded but when the constable levied the writ of attachment Mr. Stipp had the mortgage in his possession and told the constable he had it and exhibited it to him. The constable had actual knowledge of the chattel mortgage before the levy but that did not give the plaintiffs any advantage, for, under our statute, section 2256, Revised Statutes, 1919, the chattel mortgage which had not been recorded was of no effect as against an attaching creditor unless possession of the property mortgaged had been taken by the mortgagee before the levy of the attachment writ. A constable who seizes property under an attachment writ is in the *380 same position as one who has purchased from the mortgagor and hence if the mortgagor was in possession at the time of the levy, the levy would take precedence over an unrecorded mortgage even though the constable was informed of the existence of the mortgage prior to the levy. [R. S. 1919, sec. 2256; Wilson v. Milligan, 75 Mo. 41; Humphreys Savings Bank v. Carpenter et al., 250 S. W. 618.] The validity of plaintiffs’ claim under the chattel mortgage depended solely on the question as to whether Stipp or Cummins was in possession of the property at the time of the levy. The court found for plaintiffs for the grain and we think the evidence supports that finding. Mr. Cummins testified that he had nailed up the doors of the granaries where the grain was located and we think that sufficient to sustain a finding of actual possession of the grain by him. The bill of sale was signed by Stipp and had attached to it a form of acknowledgment before a notary public with seal of the notary attached on which appeared the name of the notary but he did not sign the certificate of acknowledgment. The bill of sale was recorded before the levy and plaintiffs contend that it gave constructive notice that plaintiffs were then the owners of the property, while defendant contends that since the notary did not affix his signature to the acknowledgment, the instrument could not legally be admitted to record and for that reason it imparted no notice. We are inclined to agree with defendant’s contention on that question but do not regard it as vital in this case for the reason that we do not think plaintiffs can sustain their claim under the bill of sale as giving constructive notice even though it were properly acknowledged and recorded. Whether the bill of sale was valid depends, like the chattel mortgage, upon the question of whether Cummins took possession of the property before the levy. This for the reason that we do not regard the description of the property in the bill of sale sufficient as to the farm machinery. The de *381 scription is as follows: “1 Moline Tractor, Model D and plow; 1 John Deer 10 ft. disk; 1 10 ft. Osborne Roller; 1 10 ft. Osborne Harrow.” It will be noticed that the description only tells what the articles are and the brand or name of the manufacturer. There is nothing in the bill of sale to direct a party where to find this machinery or how to identify it. The description of property in a bill of sale to be sufficient and impart notice to the world when recorded, must be sufficient to enable a third party aided by such inquiries as the instrument itself suggests to find and identify the property. [Stonebraker v. Ford, 81 Mo. 532; Dierling v. Petit, 140 Mo. App. 88, 119 S. W. 524; Bozeman v. Fields, 44 Mo. App. 432.] The description in this bill of sale does not meet that test. There is nothing in the bill of sale that would suggest to any person where he could secure information by which he could find and identify the property. If it had gone farther and had given the location of the property, it would have been sufficient (Stropp v. Hughes, 123 Mo. App. 547, 101 S. W. 146), but with no suggestion at all as to how the property may be found, the description is wholly insufficient. On the question of possession of the property, the evidence was somewhat conflicting. The property was located on the farm owned by Mr. Cummins and on which Mr. Stipp lived as tenant. When the bill of sale was executed nothing was done as to the farm machinery. It remained on the farm as before. For plaintiffs it was shown that when the bill of sale was executed Stipp agreed to move away immediately and that he did move away before the levy of the writ of attachment. If that were true, that would leave the farm and the farm machinery in the possession of Cummins, the owner of the farm. Defendant’s testimony was to the effect that Mr. Stipp had not moved away from the farm but was there with his household goods in the house and his chickens there on the premises, etc. There was sufficient evidence *382 to sustain the finding of the court that possession of the farm machinery had not passed from Stipp to Cummins at the time of the levy. The evidence therefore supports the court’s finding as to the farm machinery. The remaining question relates to the judgment against defendant for costs. The trial court is vested with some discretion in the manner of taxing costs and we are of the opinion that his discretion was not abused in this case. The statute provides that the prevailing party shall recover his costs. The plaintiffs prevailed as to the grain while the defendant prevailed as to the machinery. If plaintiffs had sued for the grain only,’ they would have recovered all they- sued for and would have been entitled to a judgment for costs under the statute. From what we glean from the record before us there was no costs made in the case that would not have been made if the issue tried had related solely to the grain. Had defendant not levied on the grain or if, when sued, he had confessed judgment as to the grain, he would have been relieved from costs in that particular but since he did not and the trial court has seen fit to tax all the costs against him, we are disposed to affirm his action. The judgment will be affirmed. Farrington and Bradley, JJ., concur.