Everett v. Brown

• Citation: 20 N.W. 743,64 Iowa 420
• Parties: EVERETT v. BROWN ET AL
• Decision Date: 08 October 1884
• Court: United States State Supreme Court of Iowa

20 N.W. 743

64 Iowa 420

EVERETT v. BROWN ET AL

Supreme Court of Iowa, Davenport

October 8, 1884

Appeal from Polk Circuit Court.

ACTION upon a bond given to discharge property seized under a writ of attachment. The cause was tried to the court without a jury, and judgment rendered for defendant. Plaintiff appeals.

REVERSED.

Mitchell & Dudley, for appellant.

Barcroft Bowen & Sickmon, for appellees.

OPINION

BECK, J.

I.

As a defense to the action, defendants pleaded that the principal in the bond was the owner of the property seized under the attachment, by virtue of a chattel mortgage before executed to him by the defendant in attachment. The case was determined upon the issue raised by this defense. The court found specially the execution and recording of the chattel mortgage, in which the property intended to be conveyed is described in the following language: "Eleven head of cattle, as follows: one cow, nearly all red, a little white one red heifer; one white and red heifer; one black and white heifer; one pale red heifer; two red and white heifers; three bull calves (fall calves); one yearling spotted steer, making eleven head; sixty (60) head of hogs; one small sorrel mare." The property taken upon the attachment is described as "forty fat hogs, four brood sows and twenty-four pigs." Other facts entitling defendants to recover, if the chattel mortgage sufficiently described the property, were specially found by the court.

As a conclusion of law, the court found that the description of the hogs in the mortgage was sufficient, aided by inquiries suggested in the instrument, to identify them, and that the registry of the instrument imparted notice of the rights of the mortgagee, and that the identity of the property was established by parol evidence, which was competent for that purpose.

II. The sole question in the case is this: Did the mortgage, being recorded, impart notice of the transfer of the property in question?

The mortgage contains literally no description, fact or circumstance in the remotest degree pointing out or indicating the specific hogs intended to be transferred, nor does it indicate directly or indirectly inquiries which would lead to the identification of the hogs. The place where they were kept, their ownership, or other matter of that character, are not indicated. It is simply stated that "sixty hogs" are transferred, and this statement would apply to the same number of hogs of any age size and description, wherever they might be found. We have held that "if, from the description contained in this instrument, the mind is directed to evidence whereby it may ascertain the precise thing conveyed, if thereby absolute certainty may be attained, the instrument is valid;" otherwise it is...