39 N.W. 214 (Iowa 1888), Plano Mfg. Co. v. Griffith

Citation:39 N.W. 214, 75 Iowa 102
Opinion Judge:ROTHROCK, J.
Attorney:Weber & Rogers and R. H. Whipple, for appellant. Nagle & Birdsall, for appellee.
Case Date:September 07, 1888
Court:Supreme Court of Iowa

Page 214

39 N.W. 214 (Iowa 1888)

75 Iowa 102




Supreme Court of Iowa, Des Moines

September 7, 1888

Decided May, 1888

Appeal from Wright District Court.--HON. D. D. MIRACLE, Judge.

THE defendant, who is a constable, levied an execution in favor of Minor & Jones and against one Shaver, upon a harvester and binder. Plaintiff brought this action to recover the value of the machine under a chattel mortgage executed by Shaver to plaintiff. There was a trial by jury, and a verdict and judgment for defendant. Plaintiff appeals.


Weber & Rogers and R. H. Whipple, for appellant.

Nagle & Birdsall, for appellee.


Page 215



The mortgage upon which the plaintiff relied was indefinite in its description. It [75 Iowa 103] described the mortgaged property as "one six 1-2 foot cut Plano harvester and binder." It contained no other words of description. That this description was insufficient to charge third persons with constructive notice of the mortgage there can be no question. See Hayes v. Wilcox, 61 Iowa 732, 17 N.W. 110; Rhutasel v. Stephens, 68 Iowa 627, 27 N.W. 786; Ormsby v. Nolan, 69 Iowa 130, 28 N.W. 569; and many other cases in this court. In all these cases the question arose between the mortgagee and persons who acquired rights from the mortgagor as purchasers, or attaching or execution creditors, and it was held that the mortgagee could not by parol evidence add to the mortgage by showing what property was intended to be included therein. It has also been held that this rule excluding parol evidence has no application, and that such a mortgage is not void for indefiniteness, as against the mortgagor or his attaching creditory having actual notice of the mortgage and of the property claimed under it. Clapp v. Trobridge, 74 Iowa 550, 38 N.W. 411. The plaintiff in this case introduced parol evidence which tended to show that long before the execution was levied one of the members of the firm of Minor & Jones had actual notice that promissory notes were taken of Shaver by the plaintiff for the harvester and binder, and that he had given the plaintiff a mortgage on the same to secure the payment of the notes. Other evidence was introduced by plaintiff, which tended to identify the machine levied upon by the defendant as the same one sold by the plaintiff to...

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