Ashley v. Keenan

Evans, J. — Plaintiff’s mortgage was duly recorded. The defendant contends that the description of the -property [3] contained in the mortgage was so indefinite that the recording thereof imparted no constructive notice. He contends, also, that he was a good faith purchaser for value without notice. He further contends that the mortgage debt was paid, and mortgage thereby satisfied. He also pleads an estoppel, and contends that the plaintiff is estopped by his conduct from claiming the property. i. chattel description: sufficiency. I. The mortgage was given to secure a promissory note for $1,964.88. The description of property contained in said mortgage is as follows: “The following goods and chattels, to wit: 12 head of horses, mares and colts of different colors, all the horses, mares and colts j own, average value of $100 each; two wagons new and complete, Lansing, 3 and inches, one single seat top buggy, 3 sets of double work harness, one light, two heavy harness, one Deering corn binder, three milk cows, all red and branded ‘F’ on right hip, 11 calves 1 year old, spring of 1907, to be branded ‘F’ on right hip, three sucking calves, 16 brood sows, 500 cords of wood on what is known as Holman’s Island. MacNutt further agrees to give as further security to the note secured hereby a chattel mortgage on 200 acres of small grain in spring of 1907. The above-described property is now in my possession and owned by me free from all incumbrance in all respects. To have and to hold the same forever.” The mortgage further provided the mortgagor should not remove any part of the mortgaged property “from the said county of Monona.” It also provided that, in case of sale of the property under the mortgage, “said sale to take place at the premises in the county of Monona and state of Iowa.” Appellant’s principal argument is that the mortgage does not locate the property in any sense, and that its identification, therefore, is impossible under the terms of the mortgage. In Rhutasel v. Stephens, 68 Iowa, 627, it was held that the following was not a sufficient description [4] “one span of colts, three years old, one gray and one bay.” In the same case it was held that “all my stock of hogs” was a sufficient description to enable a person not a party to the instrument to identify -the property. In the mortgage before us the property is described as being “all” the property owned by the mortgagor of such description, and as being in the possession of the mortgagor at his “premises in Monona County, Iowa.” The method of description is almost identical .with that shown in Wells v. Wilcox, 68 Iowa, 709. See, also, Wheeler v. Becker, 68 Iowa, 724; Brock v. Barr, 70 Iowa, 400. Following these cases, the description in plaintiff’s mortgage must be held good. Our conclusion at this. point renders, it unnecessary that we consider the question whether defendant was an innocent purchaser for value. The record of the mortgage imparted constructive notice which was as effective against the defendant as- actual notice. payment: evidence. The defendant pleaded payment. lie contends that there was sufficient evidence of payment to go to the jury. The defendant made certain admissions in his pleadings, and also upon the trial, and thereby took the burden of proof. He called the plaintiff administrator as a witness, and examined him on the subject of payment. . The note was produced by this witness showing all payments, thereon. According to the testimony of this witness, more than $900 remained unpaid upon the note at the time of the beginning of this action. The present plaintiff is the son and administrator of the original plaintiff, and had personal knowledge of the business in relation to such note. This testimony is in no manner contradicted or discredited. The only evidence pointed out by appellant as tending to prove payment is the fact that the original mortgage was not produced upon the trial, although the original note was. The plaintiff testified that he had been unable to find the original mortgage and a certified copy was used in evidence [5] in lieu thereof. There was no evidence that it had ever been surrendered to the mortgagor, or. that it had been in his possession since it was executed. 3. Same: re-property by mortgagee: estoppel. III. It is next urged that the plaintiff was estopped by his conduct from claiming the property under his mortgage. The defendant purchased the property in 1909. This suit was not begun until May, 1911, over four years after the date of the mort- ^ gage. Many partial payments had been made upon the- note covering the entire period. The mortgagor was in possession of the property, and managed, used, and controlled it in the usual way. Some sales had been made, and the proceeds thereof applied upon the note. The circumstances of the making of these’ sales do not appear. The substance of the contention of appellant is that he was misled by the apparent ownership and control of the property by MacNutt. Authorities are cited to us from other states that such use and control of the property by the mortgagor is inconsistent with the mortgage, and tends to its defeat against innocent purchasers. Such a view is not in accord with the spirit of our statutes, nor with the holdings of this court. One of the purposes of the recording statute in such a case is to' permit the mortgagee to hold the constructive possession of the property and the right of actual possession as security for the debt, and yet permit the mortgagor as holder of the title to the property to continue in the actual possession of the property and in the care and use thereof until the enforcement of the mortgage be had. This is a humane method of business, and operates to the great advantage of the mortgagor, and without detriment to any other person. The record was as available to the defendant as any other form of notice. -There is no evidence of any act of any kind on the part of the mortgagee which tended in any way to waive his mortgage, except his long sufferance and delay in enforcing the same. [6] 4. Same: evidence. IV. The defendant offered to prove a conversation between the mortgagor and one Thomas Ashley. It was made to appear that there was an occasion when the mortgagor had sold some cattle to one Byram. Def end-aDj. pr0p0se¿ to show that the mortgagor had said to Thomas Ashley that he would apply the proceeds of such cattle on plaintiff’s mortgage. This evidence was ruled out upon objection, and complaint is made of the ruling. The ruling was clearly right.' If it had been admitted, it would prove nothing material to be considered. Thomas Ashley was a nephew of the mortgagee. He had no interest in the mortgage nor any authority over it. It was not proposed to prove that the proceeds were, in fact, paid to him nor to the mortgagee. That the mortgagor should say that he would do it was not the equivalent of doing it. The rejected evidence had no tendency to prove either payment or estoppel. The trial court properly directed the verdict, and its judgment must be — Affirmed.