Mayer v. Keith

Gill, J. This is a contest between two mortgagees as to who was entitled, on November 10, 1892, to the possession of a lot of corn grown on the farm of Mrs. Eliza J. MeCallister, in Boone county, Missouri. Plaintiff Mayer asserts a right by reason of a chattel mortgage made to him in September, 1892, by Grover E. MeCallister to secure his individual debt of $624, and defendant Keith claims under a mortgage made to him in October, 1892, jointly by said Eliza J. and Grover E. MeCallister to secure a joint debt of about, $800, then owing by said Eliza J. and Grover E.. MeCallister to said Keith. The validity of both mortgages is drawn in question. The issues were' tried before the circuit court without the aid of a jury, and. the trial judge gave judgment in defendant’s favor and. plaintiff appealed. In order to a full understanding of the matters in dispute, we deem it necessary to state, that Eliza J. MeCallister (who is the widowed mother of Grover MeCallister) owned and lived on a farm of about one hundred and twenty acres, while adjoining her, and in the same neighborhood, Grover E. MeCallister had a. separate farm on which, too, he resided. In the season of 1892, Grover MeCallister raised a crop of corn on his; own farm, and also cultivated on shares forty acres of corn on his mother’s farm; and it is this last named, corn, raised on the farm of Mrs. Eliza MeCallister,. which is the subject of this contro very. I. With this preliminary statement we proceed to consider the two mortgages. Both are attacked because of alleged insufficient description. The Mayer mortgage, it must be borne in mind, was executed by Grover [161] McCallister to secure an individual debt which he owed Mayer. It was prior in point of time to the Keith mortgage and if, therefore, it covered the corn in question, the plaintiff in this action must prevail. We now quote from the Mayer mortgage: “Know all men by these presents, that the undersigned Grover E. McCallister, of Boone county, Missouri, in consideration of the sum of six hundred and twenty-four dollars, to him paid by D. A. Mayer, of Boone county, Missouri, do sell, assign, transfer and set over unto the said D. A. Mayer, and to his executors, administrators and assigns, the following personal property, to-wit: That is to say, seventy acres of growing corn raised by the said Grover JE. McCallister for the year 1892, on his farm, in section 35, etc., in Boone county, Missouri, being all the com he raised on said farm, excepting ten acres on the west end of the farm, being separate and apart from the seventy acres above mentioned.” The lower court held that the description, “seventy acres of growing corn raised by the said Grover E. McCallister on his farm in section 35, * * * Boone county, Missouri, being all the corn he raised on said farm,” etc., did not fairly include within its terms the corn which said Grover may have raised on shares on Mrs. Eliza McCallister’s farm; and we concur in this opinion. It matters not that Grover McCallister, in his mind, may have intended to include not only the corn he raised on his own farm, but as well that he raised on another farm. It won’t do in such cases to give' effect to such concealed intentions. The mortgage on its face must give notice to third parties of such intentions, or else great fraud would be accomplished. As we had occasion once before to say, in a case similar to this in principle: ‘ ’Tt is true that parol evidence may, be called in to explain the circumstances and thereby fit the description, as given in the mortgage, to certain [162] property intended to be mortgaged, but it is not permitted the mortgagee to show, as against an innocent purchaser, that his mortgage naming property of a certain description, covered or applied to property of a different description.” New Hampshire Cattle Co. v. Bilby, 37 Mo. App. 43, and cases cited. A description of “all the corn raised in the year 1892 on Oro ver McCallister’s farm, in Boone county, Missouri,” cannot be held to cover corn raised the same year on another and different farm. Neither was the description here of that grade of sufficiency as would enable third parties after reasonable inquiry suggested by the instrument to identify the corn in question as that intended to be covered by the mortgage, as was that in Campbell v. Allen, 38 Mo. App. 27, and like cases. By inquiry it would be found that Orover McCallister owned a farm, on which he lived, and that in that year he raised a crop of corn thereon; the mortgage then would be sufficient so give notice that this corn so raised on his farm, was covered by the mortgage, but it would not be sufficient to include other corn raised on another farm. We have, then, no hesitancy in declaring, with the lower court, that the Mayer mortgage did not cover the corn in controversy. The plaintiff, therefore, had no title or right of possession. II. As to the chattel mortgage under which defendant Keith claims, little need be said. ■ The description in the mortgage is “forty acres of corn standing and grown on the west half of the southeast quarter of section 35, also the southeast of the northwest quarter of section 35, township 51, range 13.” This was the description of the Eliza McCallister farm, and the evidence showed that on that farm there was but forty acres of corn raised that year. But it is objected that the description is faulty in not further stating that sec [163] tion 35, township 51, range 13, was in Boone county, Missouri. In a ease lately decided by us, this objection as to the situs of the mortgaged property is fully answered. See Estes v. Springer, 47 Mo. App. 99. The mortgage description there was assailed for the same reason as in the ease at bar. And we answer the objection as was done in that case; since the mortgage discloses that the mortgagors are of Boone county, Missouri, and since it is recited that the property was to remain in their possession until condition broken, and was not to be removed from Boone county, we hold that it was thereby made sufficiently apparent, as matter of description' from the mortgage itself, that the property was in Boone county, Missouri, The foregoing disposes of every material question in this controversy. Keith took a valid chattel mortgage as additional security for a bona fide claim he held against the two McCallisters. • There is nothing whatever appearing in this record to justify any charge of fraud, either actual or constructive; and as we discover no substantial error in the trial of the cause, the judgment will be affirmed. All concur.