Stewart v. Jaques

Blandford, Justice. The question here is,, whether a mortgage, which describes or specifies the property mortgaged as “ one bay mare, two mare mules, one horse mule,” is sufficiently specific to put a bona fide purchaser from the mortgagor of one black horse mule, nine years old, and one black mare mule, four years old, on notice by its record; that the mules mortgaged are the same as those purchased. “No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect.” Code, §1955. The property upon which the lien is to take effect must be specified. To specify means to point out, to particularize, .to designate by words one thing from another. Can it be said that to specify the property as two mare mules and one horse mule is a sufficient pointing out or designation of one thing from another, so as to distinguish the mules mortgaged from the mules purchased, especially as it appears from the record that the mortgagor had several places upon which he had mules ? We do not think, as to a bona fide purchaser, that the specification of the property in the mortgage was sufficient to put the purchaser on notice by its record that the property mortgaged was the same as that purchased. As between the mortgagor and mortgagee, parol evidence might be admitted to show the property to be the same as that mortgaged, but it is not admissible- as against a bona fide purchaser; he stands upon the notice which the record of the mortgage charges him with; the parol evidence is no notice to him. J udgment reversed.-