Fowler v. Hunt

Oeton, J. The chattel mortgage on which the plaintiffs predicate their right to the property, the value of which they seek to recover in this action, was clearly void for uncertainty of description. The language of description is as follows: “ The entire stock in trade and fixtures of the said William Wetzel, consisting of clocks, watches, chains, show cases, jewelry, and all goods included in his stock, tools and material, excepting one safe, one regulator, one astronomical clock, two musical clocks, and stock in trade to the amount of two hundred dollars.” This exception leaves in the mortgagor a proportionate interest in each article mortgaged, as $200 is to the whole value of the property, uncertain and unsevered, and which is unsevera-ble and incommutable, except by some future act of the parties; or the mortgage leaves a right of' future selection of any of the property to the mortgagor of the value of $200, the residue of which can be ascertained only by such selection; and, in either view, such uncertainty of description renders the mortgage void. [347] ■ “ In order to transfer tbe right of property in goods or chattels, the chattel intended to be conveyed- must be ascertained and identified at the time of the execution of the instrument.” Herman on Chat. Mort., § 38. Where a mortgage is of property, and there is a larger quantity in the possession of the mortgagor than is specified in the description, and no particular description of the articles, otherwise than by their general class or number, nor any selection or delivery of the articles, nor any specification as to which are intended, out of a large lot of articles then on hand, such mortgage .will be ineffectual to pass any title to any particular property, or to any interest in the property on hand. Herman on Chattel Mortgages, § 42; Croswell v. Allis, 25 Conn., 311; Blakely v. Patrick, 67 N. C., 40. So, when the exception to the things granted is, “ such articles as are by law exempt from levy and sale under execution,” and the exemption would apply as well to any of the articles named, the mortgage is void for uncertainty. In such case the court, in Newell v. Warner, 44 Barb., 263, very properly said: “The articles attempted to be sold by the mortgage are all capable of being identified and distinguished by their physical attributes. But how many and which of them became the property of. the plaintiff upon the execution and delivery of the mortgage? The instrument does hot profess to convey all, but a part only. Which part does it transfer, and which reserve†” The mortgage having been admitted in evidence in proof of the title -of the plaintiffs to the property alleged to have been converted by the defendant, and against the objection of the defendant, the circuit court erred in a most material point. By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial therein.