Abbott v. Temple
| Decision Date | 25 June 1954 |
| Docket Number | No. 7499,7499 |
| Citation | 73 So.2d 647 |
| Parties | ABBOTT v. TEMPLE et al. |
| Court | Court of Appeal of Louisiana — District of US |
Wilson, Abramson & Maroun, Shreveport, for appellant.
Morgan, Baker & Skeels, Shreveport, for appellees.
This action is by plaintiff to establish ownership of certain personal property acquired at a sheriff's sale in Caddo Parish, July 20, 1949, pursuant to foreclosure proceedings by executory process on a $10,000 chattel mortgage note in the suit entitled As a conservatory measure plaintiff also obtained a preliminary writ of injunction to restrain the defendant and city marshal from executing under a writ of fieri facias upon the chattels so claimed under a judgment obtained by Temple against the Croswell Company, Inc. in the City Court of Shreveport. After trial the demands of the appellant herein were rejected, the writ of preliminary injunction was dissolved, and judgment was rendered in favor of the defendant. From the decree the plaintiff, Abbott, has prosecuted a suspensive and devolutive appeal.
Counsel for appellant properly argues the only point for decision in this case is whether the property was affected by an act of chattel mortgage dated June 22, 1948, executed by the Croswell Company, Inc., in favor of the United Credit Company, Inc. The instrument, valid in all other respects, specifically described certain chattels but other property was simply described as: 'Also all other miscellaneous tools, machinery and equipment; all of the property being located at 6058 St. Vincent Avenue, Shreveport, Caddo Parish, Louisiana.'
The disputed property described in the marshal's inventory as taken into his possession in the seizure and claimed by plaintiff as having been covered by the mortgage in general terms consists of:
1--Box Air tools and Grinders
1--Rock Air Guns and Jack
3--50 foot lengths Extension Cords
1--Shop Air Tank Serial No. 2-1947 including air lines and connections attached to tank
8--Scaffold boards with aluminum roofing, 2400 feet Electric cable with holders
1--Electric Panel with switch board and electric boxes approximately 35 feet long and about 5 feet high with all electrical attachments attached to
1--Yale Trolley dollie
1--Overhead trolley crane complete with one chain hoist--all chains and binders and winch line on Chevrolet truck
12--Tank Dollies and Pipe rollers 25 feet long
1--Joint 2 1/2 in. pipe
15--Pipe stand dollies
6--Steel work benches
1--Length 8 in. pipe
1--2 inch fence railing
2--Tank heads 138 T.D.
1--Fabricated bending block with Furnace and Crane
1--Length 15 inch pipe
1--6 inch Iron pipe rack
1--5 ton chain hoist
2--lengths 3/4 Grass ropes.
Contending that where a chattel mortgage describes property in general terms and specifies its location the mortgage sought to be created will be effective against a seizing creditor, the following authorities are cited as supporting appellant: Soady Building Company, Ltd. v. Collins (American Nat'l Bank, Intervener), 1931, 18 La.App. 164, 137 So. 631; Smith v. Bratsos, 1942, 202 La. 493, 12 So.2d 245, reversing, La.App., 12 So.2d 241; Union Building Corporation v. Burmeister, 1937, 186 La. 1027, 173 So. 752; and Matthews v. Couie (Motors Securities Company, Inc., Intervener), La.App.1948, 35 So.2d 794.
The position of appellee is that under the chattel mortgage act as amended by Sections 1 and 2 of Act No. 172 of 1944 a full description of the property mortgaged should have been set forth in the instrument so that it was capable of identification, except in cases of mass or assemblages as permitted by the amendatory statute, and the chattel mortgage herein involved did not so describe the property in controversy.
Effective at the time of execution of the subject chattel mortgage was Act No. 172 of 1944, Secs. 1 and 2, now LSA-R.S. 9:5351 and 9:5352, as further amended in 1950:
'In order to secure the performance of any obligation, including future advances, it shall be lawful by complying with the provisions of this Part to mortgage any and every kind of movable property and to mortgage any of the following masses or assemblages of things, lumber, logs, staves, cross-ties, tiles, bricks, loose cotton, cotton seed and its by-products, live stock, poultry, * * *.
We note that Section 2 of Act No. 198 of 1918 required that such mortgage 'shall be in writing, setting out a full description of said property to be mortgaged, so that same may be identified'. This provision has been modified by permitting a general description as to the things specifically named in Section 1 of Act No. 172 of 1944 and by the requirement 'its location shall be stated.'
It is generally recognized absence of certain formalities makes a chattel mortgage ineffective against third parties without knowledge even though filed. In Southern Enterprises, Inc., v. Foster, 1943, 203 La. 133, 13 So.2d 491, at page 494 it was stated: 'Third persons without actual knowledge can not be held to have constructive notice of the existence of the chattel mortgage unless the statutory requirements are strictly complied with. (Emphasis supplied.)
Among the conditions imposed by LSA-R.S. 9:5352, quoted above, is: 'In all other cases a full description of the property to be mortgaged shall be set forth so that it may be identified and its location shall be stated.' It is, therefore, essential in order to impress third persons with the chattel mortgage privilege in this state the property shall be so described 'it may be identified' and its location stated. It is the first named of these conditions that has brought on this suit. Appellee argues further that the courts of this state have been even more exacting in its requirement of descriptive identification in the act of chattel mortgage where the property has been seized and sold under executory process, citing Article 734 of the Code of Practice, Coguenhem v. Trosclair (Laurel Grove Company, Intervener), 137 La. 985, 69 So. 800; and Willis v. Thomason, 1924, 1 La.App. 313, wherein we said:
(Emphasis supplied.)
Thus, when the chattel mortgage under which Abbott traces his title was confected, 'miscellaneous tools', 'machinery' and 'equipment' since clearly not embraced within the provisions of Section 1 became subject to the provisions of Section 2 of Act No. 172 of 1944, thus requiring a full description of the property to be mortgaged to be set forth so that it could be identified and its location stated. The provisions of the law were complied with insofar as the location of the mortgaged property was given in the instrument. We are not satisfied, however, that the chattel mortgage met the statutory condition the property mortgaged be so fully described that it could be identified. In a well written opinion by our brother below we find he has appropriately defined and analyzed certain key words employed in the language of the statute and the act of mortgage, and we quote from his opinion with approval 'Looking to Webster's Collegiate Dictionary, we find that the word 'describe' is defined to be 'set forth, relate, recount, narrate, sketch, express, depict, portray, delineate, characterize.' From the same source, the word 'tool' is defined to be 'any instrument or apparatus necessary to a person in the efficient prosecution of his trade or calling.' And from the same source, 'machinery' is defined as 'machines in general or collectively; also the working parts of a machine.' Also from the same source, the word 'equipment' is defined to mean 'anything used in equipping' and from the same source we find the word 'identify' to mean 'to...
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