Shellhammer v. Jones

Robinson, C. J. — The plaintiff claims to be the absolute and unqualified owner of two stallions which constitute the property in controversy, by virtue of a purchase thereof made under the foreclosure of a chattel mortgage given thereon by W. S. Cloak. The defendants claim a right to the possession of the property by virtue of a second mortgage, executed by Cloak, and also by virtue of a lien to them assigned, which was acquired by a keeper of a feed and livery stable. The district court found that the defendant, J.B. McCoy, was entitled to the possession of the property, and rendered judgment against the plaintiff for costs. x chattel mort-oiency oTffl" description. I. The mortgage under which plaintiff claims was executed to George McLennan on the twenty-third day of October, 1885, and wag ¿u]y recorded on the next day. It - was assigned to the plaintiff, and in January, 1890, was foreclosed by notice and sale, and the stallions were purchased by the plaintiff. The mortgage under which the defendants claim was executed on the twenty-fifth day [522] of July, 1888, to J. H. Henry; was recorded on the' twenty-sixth day of July, 1889; and was assigned to J. B. McCoy in September of that year. It purported to be a first lien upon the property in controversy, and the defendants claim that McCoy purchased it without any knowledge of the McLennan mortgage. The defendant, Jones, took possession of the property, as agent of McCoy, and does not claim any personal interest therein. The first question we are required to determine is whether the description of the property contained in the McLennan mortgage was sufficient to make the record thereof constructive notice to' subsequent purchasers of the existence of the mortgage. The description is as follows: “One bay stallion with small white star in forehead, two years old, past.” “One chestnut sorrel stallion with white tail and mane, with small white star in forehead, seven years old.” The mortgage purports to sell to the mortgagee the property described to secure the payment of notes specified, and contains a covenant to warrant and defend the title to the property mortgaged. It describes the mortgagor as “of the county of Pottawattamie and state of Iowa,” and provides that, in case of any attempt to remove the property “from said county of' Pottawattamie,” it shall be lawful for the mortgagee to take immediate possession of it. In case of a foreclosure sale, it was to be made at Griswold, in Cass county. The mortgage also contains a statement in words as follows: ‘ ‘I hereby certify that I am the owner of the said property described in this mortgage.” At the time the mortgage was executed, the stallions were in the possession of the mortgagor, on his farm in Pottawattamie county. They were the only ones of the description given which he then or has since owned. We are of the opinion that the description was sufficient, and that the record of the mortgage imparted- due notice to subsequent purchasers. [523] It is the well-established rule in this state that the description in a chattel mortgage need not be so specific and certain that the property may be identified by the description alone. It is sufficient if it directs the mind of the inquirer to facts or evidence from which he may ascertain the property mortgaged with absolute certainty. Smith v. McLean, 24 Iowa, 331; Rowley v. Bartholomew, 37 Iowa, 375; Yant v. Harvey, 55 Iowa, 422; Wells v. Wilcox, 68 Iowa, 709; Rhutasel v. Stephens, 68 Iowa, 628; Wheeler v. Becker, 68 Iowa, 724; Kneller v. Kneller, 86 Iowa, 417. The mortgage under consideration in Brock v. Barr, 70 Iowa, 400, described property as “one bay horse, named Billy, ten years old last spring,” and showed that the mortgagor resided in Mahaska county. It also provided that, in case of any attempt to remove the property from that county, the mortgagee might lawfully take possession of.the property. The description was held to be sufficient, although in important respects it was less definite and certain than are the descriptions now in controversy. The mortgage under which the plaintiff claims contains statements which pointed directly to the identical property mortgaged. It showed that the mortgagor owned the property, and indicated that he resided in Pottawattamie county. The property was of a kind not generally owned even by farmers, and was described aeccurately, and with some minuteness of detail. One who read the mortgage would naturally have concluded that the property would be found in the possession of the mortgagor on his farm in Pottawattamie county, and, had he looked there, he would have found and.identified the property without any uncertainty, and without trouble. A reasonably prudent man, who desired to protect himself, would have done so. The appellees rely upon the cases of Barrett v. Fisch, 76 Iowa, 553; Warner v. Wilson, 73 Iowa, 719; [524] Everett v. Broten, 64 Iowa, 420; Hayes v. Wilcox, 61 Iowa, 732; Muir v. Blake, 57 Iowa, 662; and Adams v. Bank, 53 Iowa, 491. But an examination of those cases will show that none of the mortgages therein considered contained all the means of identification which are given by the mortgage in controversy, nor an equivalent for them. Items of description may be of little value separately considered, and yet together identify the property to which they refer beyond question. 2. Livery stable wai?8?!r™: vivar II. On the sixth day of January, 1890, the plaintiff took possession of the horses in controversy, and of another, included in the same mortgage, an(i placed them in the livery stable of Brockway & Boggs, under an agreement to pay three dollars a day for the keeping of the three. On the eighteenth day of the month named, he settled with the keepers of the stable, and paid them all of the amount due them for keeping the horses, excepting the sum of two dollars. After he purchased, the two stallions in controversy, he returned them to the stable, to be there kept, without any further agreement in regard to the price to -be paid for their keeping, and has since paid nothing on account of it. On the fifth day of February, 1890, the defendants took the horses from the livery stable, under the Henry mortgage, and have since that time retained possession of them. McCoy has paid Brockway & Boggs thirty-five dollars for keeping the horses prior to the date last named. The defendants claim that they have acquired from the keepers of the livery stable a lien which entitles them to the possession of the horses until it is discharged. The division of the answer in which that lien is pleaded is in the form of an amendment, placed on file fifteen months after the original answer was filed. It alleges that the horses were taken by the defendants under the mortgage held by McCoy; that Broekway & [525] Boggs bad a lien on tbem for tbeir • keeping, and refused to surrender tbem until it was paid; that tbe defendants thereupon paid tbeir charges, and took an assignment of tbe lien. A demurrer to that division was filed, but appears to have been abandoned, as tbe record discloses no ruling upon it. Tbe division is not in the nature of a counterclaim, and must be regarded as denied by operation of law. Tbe record shows that McCoy paid to Brockway & Boggs thirty-five dollars for keeping tbe horses prior to the time they were taken by tbe defendants, but it is admitted tbe money was not paid until the day before tbe trial. An instrument purporting to be a receipt and assignment of tbe lien executed by Brockway & Boggs, was delivered at tbe time tbe money was paid; but it is not shown that it was executed pursuant to any agreement made» when tbe horses were taken by tbe defendants. The only conclusion which can be drawn from tbe record is that the horses were taken from Broekway & Boggs without any claim of a lien on tbeir part, and without any agreement on tbe part of tbe defendants to pay tbeir charges. If that conclusion is warranted by the facts, and for tbe purposes of this appeal we must presume that it is, tbe lieu, if one existed, was waived and lost. It could not be revived and used to defeat tbe plaintiff’s right of possession by an agreement made after this action was commenced. We do not find it necessary to determine any question in regard to tbe power of tbe keepers of livery and feed stables to assign tbeir liens. For tbe reasons shown, tbe judgment of tbe district COUrt ÍS BEVEBSED.