Alferitz v. Ingalls

• Decision Date: 04 December 1897
• Docket Number: 638.
• Parties: ALFERITZ v. INGALLS.
• Court: U.S. District Court — District of Nevada

83 F. 964

ALFERITZ v. INGALLS.

No. 638.

United States Circuit Court, D. Nevada.

December 4, 1897

M. A Murphy and Lyman I. Mowry, for plaintiff.

P. M Bowler, for defendant.

HAWLEY District Judge (orally).

This is an action at law, in the nature of replevin, brought by the plaintiff against defendant for the recovery of 92 sacks of wool, or, in case a delivery thereof cannot be had, for the value thereof, and damages for the alleged wrongful taking and withholding thereof. Plaintiff is a resident of the city and county of San Francisco, state of California, and is a partner in the firm of Dellepiani & Co., engaged in the general merchandise business,-- especially in the wool commission business. On February 6, 1894, Nicholas Pierre &amp Co. made, executed, and delivered to plaintiff, for money by him advanced, a promissory note in the sum of $11,200 payable six months after date, with interest thereon at the rate of 1 per cent. per month from date until paid, and to secure the payment of this note, on the same day, made, executed, and delivered to plaintiff a chattel mortgage upon certain personal property, viz:

'All that certain personal property situated and described as follows, to wit: 8,000 sheep, and the increase thereof, * * * now in the county of Merced, state of California.'

And the mortgage was also to secure such further and future advances not to exceed $1,500, as said Peter Alferitz might make to said Nicholas Pierre & Co., with interest as specified in the promissory note. This mortgage contained the further covenant:

'That, if the mortgagors shall fail to make any payment as in said promissory note provided, then the mortgagee may take possession of the said property, using all necessary force so to do, and may immediately proceed to sell the same in the manner provided by law, and from the proceeds pay the whole amount in said note and mortgage specified, and all costs of sale, including counsel fees, not exceeding 5 per cent. on the amount due, paying the overplus to the said mortgagors.'

The mortgage was duly acknowledged before a proper officer, and annexed thereto is an affidavit duly sworn to by Nicholas Pierre & Co., and Peter and Alferitz, to the effect that the mortgage is made in good faith, and without any design to hinder, delay, or defraud creditors, and was duly recorded in the recorder's office of the county of Merced, in the Book of Chattel Mortgages, on the 6th day of February, 1894, and at different times thereafter recorded in various other counties in the state of California, and on the 14th day of November, 1894, was recorded in the county records of Esmeralda county, state of Nevada, in the Book of Chattel Mortgages. On the 24th of December, 1896, Pierre & Co. executed and delivered to plaintiff a second note, in the sum of $20,000, and a chattel mortgage, to secure the payment of the note, upon '8,350 sheep, and the increase thereof, * * * now in the county of Esmeralda, state of Nevada,' which mortgage contains the same provisions, terms, and conditions as the first mortgage. At the time of the execution of the second mortgage, Pierre & Co. were indebted to Dellepiani & Co. in a larger amount of money than was mentioned in the first mortgage, and the second note and mortgage were given for the amount due at the time of its execution, including the amount specified in the first note and mortgage; the understanding and agreement between the parties being that the first mortgage was not to be released until the second was paid, and then both were to be released at the same time. The defendant is the sheriff of Esmeralda county, and as such levied upon the wool in controversy, as the property of Pierre & Co., by virtue of a writ of attachment in the suit of Alexander Nicholas against Nicholas Pierre & Co., and seeks to justify his seizure of the wool by virtue of the proceedings in said suit. The evidence shows that defendant had knowledge of the existence of the mortgage prior to the levy, and at the time of the levy of the attachment was notified that the wool belonged to Dellepiani & Co. Thereafter due demand was made by plaintiff for the delivery of the property. The case was, by stipulation of counsel, tried before the court without a jury. Upon these facts, and others that will hereafter be noticed, the question arises whether the plaintiff can maintain this action. Several objections were made to the sufficiency of the evidence offered on behalf of the plaintiff, and all those which reach the merits of the case will be specifically noticed.

1. It is claimed on behalf of the defendant that the description contained in the mortgages is fatally defective. The general rule is that the description in a chattel mortgage need not be so specific and certain that the property might be identified by the description alone. If the description of the personal property contained in a chattel mortgage is such as will enable third persons to identify the property, aided by the inquiry which the mortgage itself indicates and directs, the mortgage, when recorded, is constructive notice to all third parties. 5 Am.& Eng.Enc.Law (2d Ed.) 956, and numerous authorities there cited; Jones, Chat. Mortg. Secs. 53, 54; McNichols v. Fry, 62 Mo.App. 13, 16; Rawlins v. Kennard, 26 Neb. 181, 41 N.W. 1004; Duke v. Strickland, 43 Ind. 494, 499; Wells V. Wilcox, 68 Iowa, 708, 28 N.W. 29; Brown V. Holmes, 13 Kan. 482, 492; Comins V. Newton, 10 Allen, 518; Kenyon V. Tramel, 71 Iowa, 693, 28 N.W. 37, Scrafford V. Gibbons (Kan.Sup.) 24 P. 968. Applying this rule to the facts in this case, I am of opinion that the description in the mortgages was sufficient to enable third parties to ascertain the identical property mortgaged. The first mortgage declares that it is made by Nicholas Pierre & Co., of the county of Merced, in the state of California; by occupation, stock raisers. The second mortgage contains the same words, except the substitution of the words 'of the county of Esmeralda, state of Nevada. ' The facts set out in the mortgage, when properly construed, are to the effect that the property specified in the first mortgage was at the time of its execution owned by, and in the possession of, the mortgagors, in Merced county, Cal., and that the second mortgage was upon property then situate in Esmeralda county, Nev., in the possession of, and owned by, the mortgagors. Such descriptions have generally been held sufficient. Corbin V. Kincaid, 33 Kan. 649, 7 P. 145; Wells V. Wilcox, supra; Adamson V. Horton, 42 Minn. 161, 43 N.W. 849; Shaffer V. Pickrell, 22 Kan. 619, 623; Crisfield V. Neal, 36 Kan. 278, 281, 13 P. 272. In Shaffer V. Pickrell, supra, the description was, '250 stock hogs owned by the said D. B. Mott, in Franklin county, Kansas. ' The court, after referring to a clause in the mortgage with reference to the default similar to that contained in the present mortgage, said:

'A fair construction of these provisions is that the hogs, at the execution of the chattel mortgage, were owned by D. B. Mott, the mortgagor; that they were then in Franklin county, in this state, and were also in the possession of said Mott, in said county. * * * The suggestion that Mott may have had 500 or 5,000 hogs of the same description in Franklin county, from aught that appears in the mortgage or in the record, is without particular force, as the canon of construction is to solve the doubts, if any exist, in favor, rather than against, the validity of a written instrument; and we have no right to imagine facts to exist in the record to invalidate and destroy the chattel mortgage.'

The description directed parties to the situs of the property in Merced and Esmeralda counties at the time of the execution of the mortgages. This directed third parties to the starting point of inquiry. But the large bands of sheep on this coast are not usually kept on any particular farm or range. They are generally driven, as in the present case, from one county to another in the same state, or across the line into another state. In the summer time they are driven into the mountains grazing upon the public lands, and there herded and kept, and upon the approach of winter are driven back to the valleys. The most the mortgage can do is to direct the attention of the parties to the time and place where the property was at the time of the execution of the mortgage, and it would be their duty, under such circumstances, to ascertain whether the property in the possession of the mortgagor at another place was the same band of sheep that was mortgaged. Any person who read the mortgages in question would naturally have concluded that the property would be, as it was, found in the possession of the mortgagors, and could readily have ascertained, upon inquiry suggested by the records, whether the sheep were of the same band described in the mortgages. As we said in Shellhammer V. Jones, 87 Iowa, 520, 523, 54 N.W. 363, 'A reasonably prudent man, who desired to protect himself, would have done so. ' See, also, Harris V. Kennedy, 48 Wis. 500, 505, 4 N.W. 651. The statute of this state to regulate 'marks and brands of stock' (Gen. St. Nev. Sec. 757 et seq.), relied upon by defendant, only applied to 'stock running at large,' and provides the means by which the owner can identify his property, as the marks and brands as recorded, are made prima facie evidence of ownership, and of the right of possession to the animals. Undoubtedly, it would in all cases be safer, better, and clearer if such marks and brands were mentioned in the description given in a chattel mortgage, as it would obviate objections that might otherwise be urged to the validity of the description. But the decisions are universal to the effect that it is not necessary that the...