Baldwin v. Boyce

• Decision Date: 06 October 1898
• Docket Number: 18,658
• Parties: Baldwin v. Boyce
• Court: Indiana Supreme Court

51 N.E. 334

152 Ind. 46

Baldwin v. Boyce

No. 18,658

Supreme Court of Indiana

October 6, 1898

Rehearing Denied Dec. 30, 1898.

From the Delaware Circuit Court.

Reversed.

Wagner Bingham & Long, for appellant.

Chauncey L. Medsker, for appellee.

OPINION

Jordan, J.

This action was originally commenced by appellant against the appellee and Sarah Herman to recover a judgment against the latter upon a promissory note and to foreclose a chattel mortgage, securing the payment of said note against appellee, Boyce.

The cause of the action was subsequently dismissed as to the defendant, Herman, and the court, having sustained a separate demurrer of appellee to the complaint for insufficiency of facts, judgment was rendered upon demurrer against appellant, and the ruling of the court in sustaining this demurrer is the only error assigned.

The complaint, among other things, alleges the execution of the note by the defendant Herman, to plaintiff, on February 20, 1896, for the sum of $ 300, and to secure the payment of this note, with the interest thereon when due, it is averred that the said defendant Herman, on March 27, 1896, executed to plaintiff a chattel mortgage on her stock of furniture and restaurant fixtures then situated in the restaurant and hotel rooms, being located at No. 313 East Main street, in the city of Muncie, Delaware county, Indiana. It is further alleged that this mortgage was duly recorded in the recorder's office of Delaware county, Indiana, within ten days after its execution. It is also averred that on the day of -----, 1896, the defendant, Boyce, purchased from said Herman the said property.

At the time of the execution of the chattel mortgage in question, and for many years prior thereto, and ever since said time, it is averred that the defendant Boyce, "Was, has been, and is now the owner of said restaurant and hotel room and the building in which the same are situated;" that at the time the mortgage was executed by Sarah Herman, the latter was the tenant of Boyce, and occupied these rooms at No. 313 East Main street in the said city of Muncie; that these rooms, at the time of the purchase of the property by Boyce, were well known to him, and he also, at that time, knew that said property consisted of hotel and restaurant furniture and fixtures, and was situated in the said rooms and building, and he also knew, it is averred, that said rooms were numbered 313 East Main street, in the said city of Muncie, and that they had been so numbered long prior thereto.

It is further alleged, in the complaint, that in drafting the mortgage in suit, the name of the city and county in which the chattels were situated was inadvertently and unintentionally omitted. A copy of the mortgage is filed with the complaint and made a part thereof, and what also purports to be a copy of the note, secured by the mortgage, is filed as an exhibit with the complaint.

The prayer of the plaintiff, as far as it applies to appellant, is for a foreclosure of the chattel mortgage and the sale of the mortgaged property in payment and satisfaction of the mortgage debt. The mortgage, among other things, as the copy thereof discloses, recites that Sarah Herman, of Delaware county, in the State of Indiana, mortgages to Mary Baldwin, etc., the following described personal property, to wit: "All and singular the restaurant and hotel furniture and fixtures, located in and situated in and about the 1st, 2nd and 3rd stories of No. 313, East Main street, consisting of the following articles, to wit: 1 large folding lunch counter; 1 large wall case; set shelving; 1 ten gallon coffee urn; 1 glass top cigar case; 1 wall mirror; 1 bank mirror; 6 folding tables; 10 side tables; 6 tray stands; 10 lunch counter chairs; 50 dining chairs; 1 sideboard; 80 yards linoleum; 1 small refrigerator; 1 large refrigerator; 1 linen and dish safe; 1 ten-hole range; 1 steam table; 1 charcoal broiler and utensils; 1 thirty gallon hot water boiler; 1 gas stove; 24 bedsteads with the bedding for the same; 21 wash-stands with bowls and pitchers; carpeting in 22 rooms and hall carpeting; 7 heating stoves for upstairs rooms; 24 mirrors; 9 dressers; 50 chairs; 1 piano. To secure the payment of a certain promissory note, dated at Muncie, Indiana, February 20, 1896, for the sum of $ 300 and due in sixty days from date and payable at the Merchants' National Bank of Muncie, Indiana, with eight per cent. interest per annum, executed by the said Sarah Herman to the said Mary Baldwin."

The mortgage also discloses that the mortgagor was in possession of the mortgaged property at the time of its execution, and that under its terms she was to retain the possession and use of the property until the note secured thereby became due. It appears from the exhibit that the mortgage was duly acknowledged and filed for record on the same day that it was executed, and that it was recorded in the chattel mortgage record 8, in the recorder's office of Delaware county.

We are informed, by the brief of appellant's counsel, that the lower court held, upon the demurrer of appellee, the description of the mortgaged property insufficient. The contention of appellant's counsel is that the description of the mortgaged chattels is sufficient and that the complaint, when aided by the facts which a copy of the mortgage discloses, is substantially sufficient to withstand the demurrer of appellee.

The principal question discussed, pro and con, by counsel for the respective parties relates to the sufficiency of the description of the property, as described in the mortgage. It is insisted by appellee that the description of the chattels covered by the mortgage is not sufficiently definite or certain as to authorize the enforcement of the lien against the property in the hands of appellee, whom, it is said, is a purchaser thereof in good faith.

Appellee virtually concedes that, if the instrument contained anything by which the property might be identified, then, in that event, it might be held sufficient. The insistence is that the instrument states but one thing that would, if certain, afford means of identification, and that is, that the mortgaged goods are situated at "No. 313 East Main street," but as to where "East Main street" is located, it is asserted, is left wholly indefinite by the mortgage.

The rule is well settled in this jurisdiction, as well as elsewhere, that the description in a chattel mortgage must be reasonably certain, and a description of the property which will enable third persons, aided by the inquiries which the instrument itself indicates, or suggests, to identify the mortgaged property, is sufficient. The rule asserted by the ancient maxim of the law, "certum est quod certum reddi potest," that is certain which can be rendered certain, is applicable to the description in a chattel mortgage. The law properly permits parol evidence to be employed, not to furnish the description but to aid, if possible, the description given in the mortgage, in the identification of the mortgaged property. In support of the doctrine above asserted, see Burns v. Harris, 66 Ind. 536; Tindall, Adm., v. Wasson, 74 Ind. 495; Duke v. Strickland, 43 Ind. 494; Ebberle v. Mayer, 51 Ind. 235; Muncie Nat. Bank v. Brown, 112 Ind. 474, 14 N.E. 358; Buck v. Young, 1 Ind.App. 558, 27 N.E. 1106; Koehring v. Aultman, etc., Co., 7 Ind.App. 475, 34 N.E. 30; 5 Am. & Eng. Ency. of Law (2nd ed.) 956.

Cobbey on Chattel Mortgages, section 188,...