Frick v. Fritz

Sherwin, J.- 1 — July 20, 1898, the interveners sold and delivered to the defendant Fritz 101 yearling and two year old steers at the agreed price of $2,323, and took his note therefor, and a chattel mortgage on the cattle securing the same. The description of the cattle in the mortgage is as follows: “One hundred and one yearlings and two year olds, branded with the letter F on left hip.”' [440] The mortgage recites that it is given for the purchase price, that the property is unincumbered, and that it is in possession of the mortgagor in “Rodman, Palo Alto county, Iowa.” It was properly recorded on the sixth day of August, 1898. On the twenty-first day of October, 1898, the interveners sold and delivered to Fritz 2 two year old .steers and 18 yearling steers for the agreed price of $530, and took his note therefor, secured by a mortgage executed •on the same day, and properly recorded on the first of November, 1898. The following is the description of the property given in the mortgage: “Two two year old steers and eighteen yearling steers, * * * being all of the property of the kind and description nam.ed now owned by me. Said property is free from all liens and incumbrances, and is now in my possession on the -- quarter of section No. 20 of township No. 95, of range No. 31, Palo Alto county, state of Iowa.” These mortgages were both recorded before the levy of the- attachment in this case, and the plaintiff, through his attorney, had in his possession certified copies of both when the levy was directed and made. It is also clearly proven that the plaintiff’s attorneys had been told by Fritz before the levy that his cattle were mortgaged for about all they were worth to Morris & Oo., or to Morris and his partner. The name of the mortgagee .given by Mr. Fritz is not clearly shown. The first question for solution in this case is that of the validity of the first mortgage as between the mortgagor and the mortgagee, for it is evident that, if it is not a valid mortgage as between them, the controversy thereover between the mortgagee and the attaching creditor is at an end. No particular formality is necessary to make a mortgage valid as between the mortgagor and the mortgagee. Glover v. McGilvray, 63 Ala. 508; Janes v. Penny, 76 Ga. 797; Wilmerding v. Mitchell, 42 N. J. Law, 476; Merchants & Mech. Sav. Bank v. Lovejoy, 84 Wis. 601 (55 N. W. Rep. 108); Whiting v. Eichelberger, 16 Iowa, 422. Nor, [441] as between them, need it be in writing, 5 Am. & Eng. Enc. Law (2d Ed.) 954, and notes. 2 The hind or species of yearlings and two- year olds' mentioned in the mortgage is not stated, and the question arises whether, as between the parties to the instrument, the kind of stock intended to be mortgaged by them may be shown by parol. It is the general rule, sustained by nearly all of the authorities, that parol evidence is-admissible for the purpose of indentifying the property actually mortgaged, — in other words it is not necessary that the property be so particularly described that it may be selected or pointed out by any one from an inspection of the mortgage itself; and the cases are numerous in which a resort to parol evidence for the purpose of identification, even where the rights of third parties have been affected thereby, has been sustained. In this case, however, something more than the mere selecting or pointing out of the particular animals of a certain kind or species named in the mortgage is sought. Here the appellant seeks to show by parol what the species or kind is tliat the language of the mortgage was intended to cover. So far" as the description goes, it is absolutely correct, and the admission of parol evidence as to the species of property intended to be covered thereby will not change or enlarge it so as to make it cover something not included in its terms, for it purports-to cover a given number of head of some 'kind of stock. This is at once apparent upon examination of the instrument, so that such evidence would simply supply a missing word in the description of the stock. It is held that, “where parol evidence serves to apply the description of the subject matter intended to- be embraced by it, and not to change the description, it is admissible.” Nichols v. Barnes3 Dak. 148 (14 N. W. Rep. 110). The principle involved here is not different from that which permits identification of the property by parol evidence when the mortgage-covers “all personal property of which the mortgagors are [442] possessed,” and the cases are many in which it is held that such a mortgage is valid as to chattels in the possession of the mortgagor at the time of its execution, and that parol evidence is admissible to' identify them. Harris v. Allen, 104 N. C. 86 (10 S. E. Rep. 12). It is a general rule, deducible from the authorities, that parol evidence is always admissible to identify mortgaged chattels. Cobbey, Chattel Mortgage, section 166, and cases cited therein. “Descriptions of property do not of themselves identify the property, but furnish the means or data from which the property is to be identified.” “Descriptions of property in chattel mortgages are to be applied and interpreted in the light of the facts and circumstances known to the parties at the time the mortgage be made.” Id. section 155; 5 Am. & Eng. Enc. Law (2d Ed.) 964, and note 4; Smith v. McLean, 24 Iowa, 322. And see note 14 Am. St. Rep. 239, Barrett v. Fisch, 76 Iowa, 553. The appellant contends that the omission to name the species of stock mortgaged creates a patent ambiguity in the instrument which cannot be explained or helped by parol evidence, and says that it might apply "as well to “cattle, heifers, steers, bulls, horses, mules, sheep, swine, or goats.” We quite, agree with the argument that it may be so applied when standing alone, but, such being the case, a latent ambiguity is created, and nothing more, for “if the language of the document, though plain in itself, applies equally well to more objects than one, evidence may be given both of the circumstances of the case and of statements made by any party to the docuprent as to his intentions in reference to the matter to which the document relates.” Stephen, Digest Evidence, 169; Greenleaf, Evidence, sections 289, 290, 297; Chambers v. Watson, 60 Iowa, 339; Beach, Modern Contract, section 742; St. Luke’s Home for Indigent Christian Females v. Association for Relief of Respectable Aged Indigent Females, 52 N. Y. 191, 198 (11 Am. Rep. 697). It is also competent to [443] prove tbe fact tbat tbe language “yearlings and two year olds” bad a particular meaning, as used by tbe grantor, if sucb is tbe case; for, if be was in tbe habit of, or if in tbis particular case be used tbe term with a specific meaning, it may be shown by parol. Tbat be did so use it is almost conclusively evidenced by tbe mortgage itself, 'because it says tbat it is given for tbe purchase price of tbe yearlings and two year olds, and tbat they are in bis possession. We are clearly of opinion tbat parol evidence is competent to show tbe species of stock mortgaged in -this instance, and tbat tbe mortgage must be held valid and enforceable as against tbe mortgagor. Cobbey, Chattel Mortgages, sections 186-188; Clapp v. Trowbridge, 74 Iowa, 550; Plano Mfg. Co. v. Griffith, 75 Iowa, 102; Luce v. Moorehead, 77 Iowa, 367; Smith v. McLean, supra; Call v. Gray, 37 N. H. 428 (75 Am. Dec. 141) ; Leighton v. Stuart, 19 Neb. 546 (26 N. W. Rep. 198. 3 If valid as to tbe mortgagor, in what situation" does it leave tbe attaching creditors? All of tbe steers bought of tbe interveners, except a few tbat died, were in! tbe possession of Fritz, within a mile or so of Rodman at tbe time of tbe levy. If it be conceded tbat tbe mortgage of July 20th did not impart notice to the plaintiff because of insufficient description of tbe property, we still think tbe plaintiff bad sucb actual notice and knowledge of the mortgage as to make it good as to him. In tbe first place, bis attorney visited Mr. Fritz at bis borne, where tbe cattle were kept, and in 'an effort to secure tbe payment of tbe claims against him sued on herein asked him if be “didn’t have some cattle that be could secure him on.” ITe was then told by Mr. Fritz tbat bis cattle were mortgaged for all they were worth to Morris & Co., or to Morris and his partner. In tbe second place, tbe attorney himself testifies tbat after bis visit to Fritz, and' before tbe levy, be made an examination of tbe records of Palo Alto county for tbe express purpose of finding what [444] chattel mortgages Fritz had on his property, and says that he found only the two. mortgages involved in this case, both of which purported to. have been given to the interveners by Fritz. It cannot be doubted, then, that the .attorney had actual knowledge that Fritz’s cattle were all mortgaged. He knew that the interveners were the mortgagees because no other mortgages appeared of record. He knew that the mortgages were given for the purchase price of the stock, because they so. recited; and he also knew where the stock could be found, because it was declared to be in the possession of the mortgagor. By the information received from Fritz and by the information received from the record of the mortgages the plaintiff’s attorney was fully advised that all of the cattle then in the possession of Fritz were in fact mortgaged to these interveners. He was, then, in possession at least of such knowledge as would put him, as a reasonable man, upon inquiry. Allen v. McCalla, 25 Iowa, 464. In the case of Van Evera v. Davis, 51 Iowa, 637; no actual notice was shown; and in King v. Howell, 94 Iowa, 208, where there Avas, an absolutely false description, so that an examination of the record showed a mortgage on property that did not exist, it is said that “a statement to the sheriff that such corn is mortgaged only gives actual notice of the mortgage as it is written,” and, as applied to the facts in that case, it is correct. [444] It is argued that the mortgage of October 21, 1898, is not good as against this attachment, because it says that the steers covered thereby are all the steers OAvned by the mortgagor, Avhen, as a matter of fact, he OAAmed the 101 others; but this statement could not have mislead the plaintiff, for he had the ready means of finding out what part of the entire bunch of steers was covered by the second mortgage. It cannot be said that the mortgage is void for indefiniteness because it covers a part of an un•separated herd, for when the mortgage Avas giAren this stock was separate from the rest, and Avas as distinct and as cer [445] tainly pointed ' out and identified as is possible ’ in any case. The fact that they were afterwards put with the other steers would not bring the case within the rule contended for under the holding in Parker v. Chase, 62 Vt. 206 (20 Atl. Rep. 198, 22 Am. St. Rep. 99); Meredith v. Kunze, 18 Iowa, 111; and other cases cited. The correct part of the description in this mortgage is sufficient, and, even without the actual notice had by the plaintiff, the false part of the statement will be rejected, and the mortgage held good. Jones, Chattel Mortgages, section 61; Kenyon v. Tramel, 71 Iowa, 693; Smith v. McLean, supra. We think both of the mortgages under consideration good as against the attachment levied herein. This holding renders it unnecessary to consider the other matters •complained of. The judgment of the district court is reversed.