Ormsby v. Nolan

• Decision Date: 15 June 1886
• Citation: 69 Iowa 130,28 N.W. 569
• Parties: ORMSBY AND OTHERS v. NOLAN, SHERIFF, AND ANOTHER.
• Court: Iowa Supreme Court

69 Iowa 130

28 N.W. 569

ORMSBY AND OTHERS

v.NOLAN, SHERIFF, AND ANOTHER.

Supreme Court of Iowa.

June 15, 1886.

Appeal from Palo Alto district court.

This is an action of replevin, in which the plaintiffs seek to recover certain personal property, the possession of which they claim they are entitled to by virtue of a chattel mortgage executed by one Wickham to one Conger, and assigned by Conger to the plaintiffs. The defendants answered by denying the plaintiffs' right to the property, and averring that the defendant Nolan is the sheriff, and the defendant McNally is the deputy-sheriff, of Palo Alto county, and that the defendant McNally levied an execution upon said property as the property of Wickham, said execution having been issued on a judgment against Wickham. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiffs appeal.Soper, Crawford & Carr, for appellants.

Harrison & Jenswold, for appellees.

ROTHROCK, J.

1. The property in controversy was described in the mortgage as follows: “One open buggy, with fills new, made by Taylor Brothers, Emmetsburg, and bought of them; and one sulky, new, made by Taylor Brothers, Emmetsburg, Iowa.” There was no evidence that the defendants had any actual notice of the mortgage when the property was levied upon, and the court below held that the description of the property in the mortgage was too indefinite to charge the defendants with constructive notice, and that, as between these parties, extrinsic evidence was not admissible to identify the property as that intended by the parties to the mortgage to be included therein.

Appellants insist that these rulings of the court were erroneous. A number of cases have been determined by this court involving the question as to the sufficiency of the description of property in chattel mortgages to charge third persons with constructive notice of the rights of the mortgagee. See Smith v. McLean, 24 Iowa, 331; Ivins v. Hines, 45 Iowa, 73;Muir v. Blake, 57 Iowa, 665; S. C. 11 N. W. Rep. 621;Hayes v. Wilcox, 61 Iowa, 732;S. C. 17 N. W. Rep. 110;Everett v. Brown, 20 N. W. Rep. 743.

An examination of these cases leaves no doubt that the ruling of the court below was correct. The description of the property as contained in the mortgage must direct the mind to evidence whereby the precise thing conveyed may be ascertained, and if thereby absolute certainty may be attained, the instrument is valid; otherwise it is void as to the third parties for uncertainty. Of course, no two of the above-cited cases are exactly alike in the description of the property in the mortgage; but it is quite apparent that the mortgage involved in this case is invalid under the rule above stated. The description is so much like that in the case of Hayes v. Wilcox, supra, which was held to be insufficient, that counsel for appellant intimate that that case should be overruled and this mortgage sustained. We know no reason for so doing, and we think that Hayes' Case is not inconsistent with the other cited cases.

The ruling of the court excluding the extrinsic evidence was correct. It is only when the mortgage suggests inquiry, which will result in its identification, that parol evidence is competent to point out and identify the property. Rowley v. Bartholemew, 37 Iowa, 374;Ivins v. Hines, 45 Iowa, 73.

2. For some reason the court below thought it necessary to certify this cause to this court under section 3173 of the Code, which limits the right of appeal to cases when the amount in controversy, “as shown by the pleadings, does not exceed one hundred...