Klug v. Munce

Mr. Justice Goddard delivered the opinion of the court: 1. It is contended by counsel for appellant that the court erred in admitting’ in evidence the chattel mortgage executed by Jesse and William Munce, Sr., because it failed to specifically describe the marks and brands, or otherwise describe the horses, so as to enable third parties to identify them. We think this contention is unwarranted. The color and ages of the horses are given, and referring to [279] the brands the language used is “branded with Sterling’s brand.” We think this is sufficient to put a party upon inquiry to ascertain what Sterling’s brand was, and whether or not the reversed S with bar over it, which plainly appeared upon the left shoulder of the horses, was such brand. The appellant testified that the brand on these horses was a bar over the S, which Mr. Sterling, testified was his brand, and that it was the brand used on the horses he sold to F. E. Smith & Co. The evidence as to the age and color of the horses shows that in these respects the horses were correctly described in the mortgage. The rule as to the description of property included in a chattel mortgage is that: “As against third persons the mortgage must point out the subject-matter so that the third person may identify the property covered by the aid of such inquiries as the instrument itself suggests. ’ ’ — 6 Cyc Law & Procedure 1022, and cases cited in note 25; Lawrence v. Evarts, 7 Ohio St. 197. And “Every inquiry which the instrument itself could reasonably be deemed to suggest must be made by a subsequent incumbrancer.”- — Yant v. Hardy, 55 la. 421. Tested by this rule, the description of the horses in the mortgage was sufficient to furnish constructive notice to third parties that they were covered thereby, and appellant therefore took his mortgage subject thereto, and with notice of Smith & Co.’s right to take possession of them in case of default in the payment of their note. It follows that the mortgage was properly admitted in evidence. 2. It is further contended that there was no such change of possession of the horses as required by the statute. We assume that the statute referred to is section 2027, Mills ’ Ann. Stats., which provides that every sale of goods or chattels unaccompanied [280] by immediate delivery and followed by an actual and continued change of possession, shall be presumed to be fraudulent and void as against the creditors of the vendor or subsequent purchasers in good faith. There is no question as to the sufficiency of the delivery to, and the actual and continued possession of the horses by, Smith & Co., but it is claimed that the delivery and change of possession of the horses as between Smith & Co. and the appellee did not constitute a sufficient compliance with the requirements of the statute. It is unnecessary - to determine whether this is true or not, since the appellant was neither a creditor of, nor a subsequent purchaser from, Smith & Co., and he is, therefore, not in a position to invoke the aid of the statute. 3. The claim of appellant that a demand was necessary to enable appellee to maintain this action is equally untenable. A demand is only required when it is necessary to terminate the defendant’s right of possession which had theretofore been lawful, and confer the right of possession on the plaintiff, and is not required when the possession of the defendant was wrongfully acquired, or where the plaintiff’s right of possession has been wrongfully invaded by him. In this case, the appellant took possession of the horses without any right to do so, and deprived the appellee of possession of the same without his consent. No demand was, therefore, necessary as a condition precedent to the maintenance of the action. 4. In argument counsel for appellant attack the form of the judgment, but as there was no objection to the judgment on this ground interposed in the court below, and no exception taken to the judgment for the reason that it did not strictly conform [281] to the requirements of section 227 of the code, we are not called upon to consider this objection. Upon a careful examination of the record, we are unable to see wherein the court below committed any error in the trial of-the cause which would justify a reversal. Its judgment, therefore, is affirmed. Affirmed. Chief Justice Steele and Mr. Justice Bailey concur. _