Ashley v. Keenan

• Court: Iowa Supreme Court
• Writing for the Court: EVANS, J.
• Citation: Ashley v. Keenan, 157 Iowa 1, 137 N.W. 1041 (Iowa 1912)
• Decision Date: 22 October 1912
• Parties: JOHN ASHLEY, Administrator of the Estate of JAMES ASHLEY, deceased, Appellee, v. IKE KEENAN, Appellant

137 N.W. 1041

157 Iowa 1

JOHN ASHLEY, Administrator of the Estate of JAMES ASHLEY, deceased, Appellee, v. IKE KEENAN, Appellant

Supreme Court of Iowa, Des Moines

October 22, 1912

Appeal from Monona District Court.--HON. DAVID MOULD, Judge.

THIS is an action of replevin. The property in controversy is a team of horses and wagon. The plaintiff claims the possession thereof by virtue of a chattel mortgage executed by one F. E MacNutt on January 10, 1907. The defendant claims the property under an alleged purchase of the same from said F E. MacNutt subsequent to the execution of the mortgage. At the close of the evidence, the trial court directed a verdict for the plaintiff. Defendant appeals.

Affirmed.

J. A Prichard and Miles W. Newby, for appellant.

C. E. Cooper, and J. W. Anderson, and T. R. Ashley, for appellee.

OPINION

EVANS, J.

Plaintiff 's mortgage was duly recorded. The defendant contends that the description of the property contained in the mortgage was so indefinite that the recording thereof imparted no constructive notice. He contends, also, that he was a good faith purchaser for value without notice. He further contends that the mortgage debt was paid, and mortgage thereby satisfied. He also pleads an estoppel, and contends that the plaintiff is estopped by his conduct from claiming the property.

I. The mortgage was given to secure a promissory note for $ 1,964.88. The description of property contained in said mortgage is as follows: "The following goods and chattels, to wit: 12 head of horses, mares and colts of different colors, all the horses, mares and colts I own, average value of $ 100 each; two wagons new and complete, Lansing, 3 and 1/4 inches, one single seat top buggy, 3 sets of double work harness, one light, two heavy harness, one Deering corn binder, three milk cows, all red and branded F' on right hip, 11 calves 1 year old, spring of 1907, to be branded F' on right hip, three sucking calves, 16 brood sows, 500 cords of wood on what is known as Holman's Island. MacNutt further agrees to give as further security to the note secured hereby a chattel mortgage on 200 acres of small grain in spring of 1907. The above-described property is now in my possession and owned by me free from all incumbrance in all respects. To have and to hold the same forever." The mortgage further provided the mortgagor should not remove any part of the mortgaged property "from the said county of Monona." It also provided that, in case of sale of the property under the mortgage, "said sale to take place at the premises in the county of Monona and state of Iowa."

Appellant's principal argument is that the mortgage does not locate the property in any sense, and that its identification, therefore, is impossible under the terms of the mortgage. In Rhutasel v. Stephens, 68 Iowa 627, 27 N.W. 786, it was held that the following was not a sufficient description "one span of colts, three years old, one gray and one bay." In the same case it was held that "all my stock of hogs" was a sufficient description to enable a person not a party to the instrument to identify the property. In the mortgage before us the property is described as being "all" the property owned by the mortgagor of such description, and as being in the possession of the mortgagor at his "premises in Monona County, Iowa." The method of description is almost identical with that shown in Wells v. Wilcox, 68 Iowa 708 at 709, 28 N.W. 29. See, also, Wheeler v. Becker, 68 Iowa 723 at 724, 28 N.W. 40; Brock v. Barr, 70 Iowa 399 at 400, 30 N.W. 652. Following these cases, the description in plaintiff's mortgage must be held good. Our conclusion at this point renders it unnecessary that we consider the question whether defendant was an innocent purchaser for value. The record of the mortgage imparted constructive notice which was as effective against the defendant as actual notice.

The defendant pleaded payment. He contends that there was sufficient evidence of payment to go to the jury. The defendant made certain admissions in his pleadings, and also upon the trial, and thereby took the burden of proof. He called the plaintiff "administrator" as a witness and examined him on the subject of payment. The note was produced by this witness showing all...