Strolberg v. Brandenberg

Collins, J. That part of the mortgage involved in this controversy which is written (a printed blank having been used) is not a work of great professional merit. The' description of the property is as follows: “All that certain personal property described as follows, to wit: The N W | of N W | and S W J of N W J, in section 11, township number one hundred thirty-four (134) north, of range thirty-eight (38), eightie, (39) ackers in crop,.(33) ackers in whead and (6) ackers ods, all of said property, ” etc. It was duly filed in the town clerk’s office, and, if the description be’ sufficient, was of such general validity as will authorize the maintenance of plaintiff’s action. It is requisite that it should contain such a description of the property covered as will enable third persons clearly to identify the property, when aided by [349] inquiries which the instrument itself indicates and directs. Griffiths v. Wheeler, 31 Kan. 17, (2 Pac. Rep. 842.) It is conceded that the words “whead” and “ods” meant “wheat” and “oats;” and it must also be admitted that, if from the entire instrument it can be gathered that any personal property was in fact mortgaged, it must have been the wheat and oats belonging to the mortgagor. The form used is a very common one. It is headed a chattel mortgage, and the instrument is filed as such. The property is said to be personal. If proper care is not given, or any attempt is made to remove it, provision is made for its seizure and sale; and there are other indications of its nature. It is beyond doubt a mortgage upon some hind of personalty, and the only property of that class mentioned at all is the wheat and oats, at the time in the mortgagor’s possession in the town of Leaf Yalley, in which town he resided. It is true that 80 acres of land are by government subdivisions first described, when, if it was the intention to mortgage the crop thereon, the proper order would have been to describe the lands last. But it is evident that the mortgage is not upon real estate, and if any force or import is to be given to the fact that lands are described, we must concede that such description is for the purpose of identifying and locating the chattels mentioned. The only kind of chattels alluded to being the acres of wheat and oats in crop, it would seem to follow that said crop must be on the land described. Had inquiry been made when the instrument was discovered in the clerk’s office, it would have been found that the mortgagor was in possession of the 80 acres described, upon which he was raising 33 acres of wheat and 6 acres of oats. Armed with this information, although the construction of the sentence before quoted and its orthography are wretchedly bad, can any one doubt that the mortgagor’s then growing crop of 39 acres was intended, and in an indistinct and confused manner actually described in the mortgage? The use of the preposition “in,” which seems to have determined the learned judge below, should not be allowed to wholly control the construction of the sentence. Order reversed.