Tolbert v. Horton

Berry, J. The mortgage executed by P. M. Tolbert to defendant [106] contained these words, following a description of the mortgaged property, viz.: “All the said property being * * * free from all incumbrances except a mortgage heretofore given on a part of said property to one James Tolbert,” (the plaintiff.) Upon the former appeal in this action, (31 Minn. 518,) we held that, from this recital, the defendant is conclusively presumed to have had express notice of the former mortgage to plaintiff, and that, as to defendant, it was valid, and defendant’s mortgage subject to it, irrespective of filing. 1. This holding appears to us to dispose of the second, third, fourth,, and eighth assignments of error upon defendant’s brief. Plaintiff’s, mortgage, of which defendant is held to have had notice, contains an express acknowledgment of the indebtedness of P. M. Tolbert to him in the sum of $4,533, and expressly states that it is executed to secure that indebtedness. Inasmuch as there is no evidence in the case tending to dispute the existence of the indebtedness thus admitted in the plaintiff’s mortgage, the further evidence of such indebtedness received upon the trial was purely superfluous and immaterial, and hence, whether competent or not, worked no harm. 2. As we read the settled case, the entire testimony of Barber as to. what property was put into plaintiff’s mortgage was stricken out, with the very just remark upon the part of the court that it did not “add to or take from” the mortgage itself. 3. The requisition upon the sheriff in this “claim and delivery” action, and his return thereon, were properly received in evidence,, for the purpose indicated in Bennett v. Schuster, 24 Minn. 383. 4. Testimony that P. M. Tolbert told defendant, at the time when he “bargained” for his mortgage, that there was no incumbrance on the horses involved in the present action, and that they were not included in plaintiff’s mortgage, was properly excluded. It was res inter alios as respected plaintiff and his rights under his mortgage, executed months before the statements mentioned purported to hav& been made. 5. The horses in controversy are described in plaintiff’s mortgage as “three four-year-old horses,” and, together with the other property mortgaged, as “all being now in the possession of said first party, (P. M. Tolbert,) in the city of Bochester and town of Bochester.” The107 evidence tends strongly to show that, at the time of tbe execution of the mortgage to plaintiff, the horses were three years old, coming four, so that, as respected their age, there was a misdescription; but this is not necessarily fatal. The general rule is that a description in a chattel mortgage of the mortgaged property is sufficient if it will enable a third person, aided by inquiries which the instrument itself suggests, to identify the property. Jones, Chat. Mortg. § 54, and eases cited. Now, there is testimony in this ease to the effect that it is not uncommon to call horses three years old past, and coming four, four years old; that the mortgage to plaintiff covered all the horses owned by P. M. Tolbert, and in his possession, in the town and city of Rochester; and that there were no other horses in his possession when the mortgage was executed, except the three, (of which these in controversy are two,) which would answer the call of the mortgage, so as to make up the number mortgaged; that is to say, unless the description is to apply to them, there is nothing to which it can apply. In this state of evidence we think the jury might well find the description sufficient to embrace the horses in question, and to enable a third person to identify the property, even though in so doing it would be necessary to reject that portion of the description relating to age. Jones, Chat. Mortg. §§ 61, 63; Harris v. Kennedy, 48 Wis. 500; King v. Aultman, 24 Kan. 246. But, even if there were any doubt as to this proposition, it-is to be further noted that the defendant does not occupy the position of an ordinary third party and stranger. His own mortgage expressly notifies him that a part of the property covered by it is subject to the plaintiff’s prior mortgage. He is thus expressly put upon inquiry as to what part is referred to. There is nothing to show that any of the property mortgaged to defendant, except the horses in dispute, is embraced in plaintiff’s mortgage. The testimony shows quite clearly that plaintiff’s mortgage did not embrace the other horses mortgaged to defendant; and upon the whole testimony there is fair ground for saying that the horses in question were the only “part” of the property mortgaged to plaintiff included in defendant’s mortgage, and therefore the only and the very property mentioned in defendant’s mort [108] gage as having been previously mortgaged to plaintiff. As to the defendant, then, at any rate, we think the description must be held sufficient. This disposes of all of defendant’s points to which we deem it necessary to advert specifically, and the result is that the order denying a new trial is affirmed.