Barrett v. Fisch
| Decision Date | 19 January 1889 |
| Citation | 41 N.W. 310,76 Iowa 553 |
| Parties | BARRETT v. FISCH |
| Court | Iowa Supreme Court |
Decided January, 1889.
Appeal from O'Brien District Court.--HON. SCOTT M. LADD, Judge.
ACTION for the recovery of specific personal property. Verdict and judgment for plaintiff. Defendant appeals.
AFFIRMED.
Geo. W Hewitt, for appellant.
O. M Barrett and S. A. Callvert, for appellee.
Plaintiff purchased the property in question, which is a horse, from John K. Rothaermel. Defendant claimed under a chattel mortgage executed by Rothaermel before the sale to plaintiff. The description in the mortgage is "one sorrel horse, three years old." The instrument recites, however, that the mortgagor was a resident of Sioux county, and provides that in case of foreclosure the property shall be sold in that county. The district court ruled that the record of the mortgage did not impart constructive notice, and directed a verdict for plaintiff. It has frequently been held by this court that the record of a mortgage containing a description similar to that in question was not constructive notice to creditors or subsequent purchasers of the rights of the mortgagee. Caldwell v. Trowbridge, 68 Iowa 150, 26 N.W. 49; Rhutasel v. Stephens, 68 Iowa 627, 27 N.W. 786; Barr v. Cannon, 69 Iowa 20, 28 N.W. 413. It was contended, however, that the recital as to the mortgagor's place of residence, and the provisions as to the place of sale, were sufficient to suggest an inquiry, which, if followed, would have led to the identification of the property intended to be covered by the mortgage. But this position cannot be sustained. It could be understood from the recital, perhaps, that the mortgage was intended to cover property in Sioux county. But knowledge of that fact would not aid one who was seeking information as to the particular property intended. Aided by the recital, the description is simply of a sorrel horse, three years old, in Sioux county, which is as indefinite as that given in express terms in the mortgage.
It was contended, however, that as the mortgage was valid as between the parties to it, the burden was on plaintiff to prove that he did not have actual notice of its existence when he made the purchase of the property, and that, as he did not introduce evidence of that fact, the verdict should have been the other way. The case was tried, however, upon the theory that defendant's right...
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