Tindall v. Wasson

Elliott, J. The appellant instituted this action to recover certain personal property described in the complaint as “two brown female mules.” The appellee answered in four paragraphs, and the question which this appeal presents is, whether the second paragraph of the answer stated facts sufficient to constitute a defence. The paragraph of the answer referred to contains, in substance, these allegations : That the only claim or right of the plaintiff to the property in controversy is founded upon a chattel mortgage, executed by one Gore on the 7th dav of January, 1871; that the property was described in said chattel mortgage as follows : “Two mule colts one year old next spring;” that this ivas the only description of the mules in said mortgage; that the mortgagor, after the execution of the mortgage, sold the mules to Elijah Goodwin ; that Elijah Goodwin sold to Nelson Goodwin ; that the appellee afterward bought the mules of Nelson Goodwin for a valuable consideration ; that he had no knowledge of the exist [497] ence of appellant’s mortgage. We have given only a mere outline of the answer, but one sufficient to present the question discussed by counsel, and upon which the case turns. The sole question discussed is as to the sufficiency of the description of the property, which the answer alleges is contained in the mortgage. Appellant cites in support of his position, that the mortgage sufficiently describes the property, three cases, which we will briefly consider. In Duke v. Strickland, 43 Ind. 494, the description in the mortgage was, as we gather from the opinion in that case, “a ten-acre field of growing wheat on the northwest quarter of the southwest quarter, of section thirty-four, township eighteen, range ten. in Henry county, Indiana.” It will be observed that in the case cited the locality of the property was particularly pointed out, and the means of identifying it clearly supplied. It is true that the inference deducible from the fact that the case referred to expressly overrules the earlier case of McCord v. Cooper, 30 Ind. 9, goes very far toward supporting the theory of the appellant. In the overruled case, the description of the property was “three yoke of oxen,” and there was no locality or other circumstances of identity mentioned. It seems to us that there was no real conflict between the two cases, for in the former there were circumstances of identification which were altogether wanting in the latter. In Ebberle v. Mayer, 51 Ind. 235, the description in the mortgage was as follows: “All the stock, tools, fixtures and materials now on hand in the shop formerly occupied by said Kreber & Co., on Central avenue, in the city of Madison, Ind., and being the same property this day sold to us by said Kreber & Co.” This was held a sufficient description, upon the authority of Duke v. Strickland, without any discussion or citation of cases. It will be noticed that, as in the case upon which it is based, there is in the mortgage passed upon by the case [498] referred to, a statement of locality and other matters of identification. In this respect the cases of Duke v. Strickland and Ebberle v. Mayer are essentially different from the case in hand. In Smith v. McLean, 24 Iowa, 322, the description in the mortgage was “five freight wagons, and twenty-five yoke of cattle being the train now in my possession,” and it was held sufficient. It was there said: “That description which will enable third persons, aided by inquiries which the instrument itself indicates and directs, to identify the property, is sufficient.” The doctrine declared in the extract quoted is well sustained by authority. The general rule is plain enough, but the difficulty is to determine, in each particular case, what description is sufficient to indicate and direct inquiries which will result in the identification of the property. In the case under consideration, there are no circumstances of identification named except such as may be found, if any can be found, in the.words “two mule colts one year old next spring.” This description certainly does not indicate any particular mule colts, for it would apply to any mule colts in the world which would be one year old the spring following the execution of the mortgage. If one had undertaken to find the particular mules mortgaged, by means of “inquiries indicated and directed” by the description in the mortgage, his field of inquiry would have been a very wide one, for with the exception of the statement of the age there is not a single circumstance of identification stated. We are not attempting to lay down any general rule in the present case, but confine ourselves to the decision of the precise question presented. The answer avers, and the demurrer admits, the truth of the allegation, that “the only description contained in the mortgage is, ‘two mule colts one year old next spring.’ ” There are no circumstances of identity stated, neither locality, ownership, nor anything else affording means of identification. The description we have given stands alone and unaided. We hold such a description [499] as that contained in the mortgage and stated in the answer, to be insufficient. If it were aided by any circumstance or matter of identification which would enable the description .to be made certain by parol evidence, it would be otherwise. A copy of the mortgage is filed with the answer, but, as it does not constitute the foundation of the paragraph, we can not examine it, either for the purpose of sustaining or overthrowing the pleading. Judgment affirmed.