Rountree v. Chrisman & Co.

Wade, C. J.' The property levied upon was described in the mortgage fi. fa. as “one yellow mare mule 6 years old, about 15 hands high,” and the mortgage upon which this fi. fa. was based covered property described as “one yellow mare 6 year old, about 15 hand high,” but the mortgage recited, immediately following these words of description, that “it is expressly agreed that said J. N. Chrisman & Company do not warrant health, life, soundness, and work of said mule [italics [816] ours], only tlie title thereto, and which the said J. A. Moree hereby mortgages to the said.J. N. Chrisman & Company, to secure the pur-, chase price aforesaid.” The mortgagor sold the mortgaged property to a person who in turn sold it to the plaintiff in error, and the latter interposed a claim to it when it was levied upon under the mortgage fi. fa. as “one yellow mare mule, . . the property of J. A. Moree, by virtue of a mortgage fi. fa.,” etc. Held, that the mortgage, when considered as a whole, indicated the existence of a contract lien upon a yellow mare mule sufficiently to place all third persons upon constructive notice thereof; and the trial judge (there being no conflict in the evidence) , did not err in directing a verdict in favor of the plaintiff in fi. fa., finding the property subject to the mortgage execution. Decided September 13, 1917. Levy and claim; from city court of Nashville—Judge Christian. February 13, 1917. J. Z. Jackson, for plaintiff in error. Hendricks, Mills & Hendricks, contra. Judgment affirmed. George and Luke, JJ., concur.