40 Mich. 203 (Mich. 1879)
Chas. W. Richardson et al.
The Alpena Lumber Co
Supreme Court of Michigan
January 21, 1879
January 9, 1879; January 10, 1879, Submitted
Error to Alpena. Submitted January 9 and 10. Decided January 21.
Judgment affirmed with costs.
Kelley & Clayberg for plaintiff in error. A mortgage on a stock of goods is not void for uncertainty, People v. Bristol, 35 Mich. 28, and cases; nor one upon a drove of cattle, Brown v. Holmes, 13 Kan. 482; any description is sufficient that enables third persons to identify the property, aided by inquiries which the mortgage itself indicates, Lawrence v. Evarts, 7 Ohio St., 194; and if good between the parties it is good as to all who have actual knowledge, American Cigar Co. v. Foster, 36 Mich. 368; Robson v. Mich. Cent. R. R. Co., 37 Mich. 70; a mortgage upon a quantity of logs in the mass, with power to take possession, gives the right of selection, Call v. Gray, 37 N.H. 428; Gardner v. Dutch, 9 Mass. 427; Shumway v. Rutter, 7 Pick. 56; a mortgage is not absolutely void for an indefinite description, but may be explained by parol, Sargeant v. Solberg, 22 Wis. 132; Eddy v. Caldwell, 7 Minn. 225; Bell v. Prewitt, 62 Ill. 361; Stephens v. Tucker, 55 Ga. 543; Willey v. Snyder, 34 Mich. 60; Hardy v. Matthews, 38 Mo. 121; Bell v. Woodward, 46 N.H. 315; Midlothian etc. Co. v. Finney, 18 Gratt. 304; Wing v. Gray, 36 Vt. 261; Conkling v. Shelley, 28 N.Y. 360; Elder v. Miller, 60 Me. 118; Duke v. Strickland, 43 Ind. 494; a mortgage description that is indefinite because it covers property that is in a mass, may be made definite and valid by a separation, delivery, or taking possession under the mortgage, Morrow v. Reed, 30 Wis. 81; Weld v. Cutler, 2 Gray 195; Crofoot v. Bennett, 2 N.Y. 258; Brewer v. Salisbury, 9 Barb. 511; Croswell v. Allis, 25 Conn. 301; Read v. Wilson, 22 Ill. 377; Brown v. Webb, 20 Ohio 389; Williams v. Briggs, 11 R.I. 476.
Holmes & Carpenter for defendant in error.
A sale of a stated quantity of logs does not pass title until they are measured and separated from the common mass (Whitcomb v. Whitney, 24 Mich. 486; First Nat. Bank v. Crowley, id., 492; Adams Mining Co. v. Senter, 26 Mich. 73; Ortman v. Green, id. 209; Lingham v. Eggleston, 27 Mich. 324; Hahn v. Fredericks, 30 Mich. 223, and cases) and the same rule should govern property covered by a chattel mortgage, Merrill v. Hunnewell, 13 Pick. 213; Young v. Austin, 6 Pick. 280; Barry v. Bennett, 7 Metc. 354; the property should be so described that it may be readily distinguished from other property of the same nature with which it is commingled, Montgomery v. Wight, 8 Mich. 143; Golden v. Cockril, 1 Kan. 259; McCord v. Cooper, 30 Ind. 9; if it cannot be identified...