Dierling v. Pettit

• Citation: 119 S.W. 524,140 Mo.App. 88
• Parties: COTTLIEB DIERLING, Appellant, v. WILLIAM H. PETTIT, Respondent
• Decision Date: 25 May 1909
• Court: Court of Appeal of Missouri (US)

119 S.W. 524

140 Mo.App. 88

COTTLIEB DIERLING, Appellant, v. WILLIAM H. PETTIT, Respondent

Court of Appeals of Missouri, St. Louis

May 25, 1909

Appeal from Knox Circuit Court.--Hon. Charles D. Stewart, Judge.

AFFIRMED.

Judgment affirmed.

O. D Jones for appellant.

F. H McCullough and C. R. Fowler, for respondent.

NORTONI J. Reynolds, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

This is a suit in conversion. Defendant recovered and plaintiff appeals. It appears the plaintiff mortgagee held a chattel mortgage executed by one, James Carr, on two mules. The mortgage was dated September 30, 1903, in Schuyler county, Missouri, and recorded April 15, 1904, in Scotland county, Missouri. After the mortgage was recorded, Carr, the mortgagor, removed to Knox county, Missouri, and in August, 1904, sold the mules to defendant, a dealer, who resold them to other parties. Carr, the mortgagor, having absconded, plaintiff mortgagee instituted this suit against the defendant, purchaser of the mules, seeking to recover as for their conversion. The jury found the issues for the defendant. Plaintiff prosecutes the appeal, complaining of errors in the instructions given by the court. In the view we have taken of the case, it will be unnecessary to examine the alleged errors in instructions for the reason we believe the description of the property contained in the mortgage is insufficient as a matter of law. That is, that all the relevant recitals appearing in the mortgage, when taken together, are insufficient to suggest an inquiry which would lead to the identity of the mules in question.

Touching upon the facts in the record, it appears that the plaintiff resides in Schuyler county. On September 30, 1903, at his farm in that county, he sold to James Carr a span of mules; and on the same day, Carr executed to him a chattel mortgage thereon, securing his note of even date therewith, by which he promised to pay plaintiff $ 335, twelve months after date. The entire description of the mules contained in the mortgage, is as follows: "One black mare mule, six years old, with mealy nose; one bay mare mule, six years old." There is no word contained in the mortgage, so far as appears, as to where the mules were at the time, or where they were to be located, nor in whose possession they were to remain until maturity of the note; nor does anything appear therein whether Carr owned these mules only, or owned or had in his possession others as well. The mortgage was not recorded in Schuyler county. It appears Carr resided in Scotland county, Missouri, and removed the mules to his home in that county. In accordance with our statute (sec. 3404, R. S. 1899, sec. 3404, Mo. Ann. St. 1906), requiring chattel mortgages to be recorded in the county in which the grantor executing the same resides, the mortgage was duly recorded in Scotland county on April 15, 1904. Afterwards Carr removed to Knox county, and in August, 1904, sold the mules to the defendant. Defendant purchased the same for value without actual knowledge of the mortgage. That is to say, he was charged only with such constructive notice thereof as arises under the statute from the fact that it was recorded. Now the law is indeed tolerant with matters of description in chattel mortgages. It is not necessary that the property should be so described as to be capable of being identified by the written recital or by the name used to designate it in the mortgage. And parol evidence is admissible to show that a particular article is included within the general words of a description but not to supply an essential word which has been omitted. Of course the description contained in the mortgage before us is valid between the immediate parties thereto. [Jones on Chattel Mortgages (5 Ed.), sec. 53]. But the question presented for decision relates to its sufficiency as against a third party who has purchased the mules for value and without actual notice of the plaintiff's rights. Touching the rights of innocent third parties--that is, of such persons as may purchase in good faith without notice of the mortgagee's rights, other than that imparted by the record-- there must be something reasonably definite and certain contained in the mortgage which would enable a stranger to locate or identify the property. It is true the description itself need not be such as would enable a stranger to select the property, but the description must be sufficient at least to enable a third party, aided by such inquiries as the instrument itself suggests, to identify the property as that mortgaged. Although the descriptive words in a mortgage in themselves are insufficient to suggest an inquiry which would lead one to identify the property, the mortgage will be prima facie sufficient as a matter of law, if, taken as a whole, other pertinent recitals therein sufficiently aid the descriptive matter to suggest such an inquiry as will lead one to identify the property with reasonable certainty. [Stonebraker v. Ford, 81 Mo. 532; Evans v. Turner, 143 Mo. 638, 45 S.W. 654; City Natl. Bank v. Goodloe, etc., Com. Co., 93 Mo.App. 123; Young v. Bank, 97 Mo.App. 576, 71 S.W. 713; Jones on Mortgages (5 Ed.), secs. 53, 54; 5 Amer. and Eng. Ency. Law (2 Ed.), 596, 597.]

The question for decision is: Are the words "one black mare mule, six years old, with mealy nose; one bay mare mule, six years old," when considered together with other pertinent recitals in the mortgage before us, sufficient to suggest an inquiry which would lead a third party to identify the animals referred to? Now as before stated, there is no word contained in this mortgage as to where these animals were located nor in whose possession they could be found. The mortgage seems to have been executed and dated in Schuyler county. It was recorded in Scotland county, and the sale of the mules to defendant was made in Knox county. The fact that the sale was made to defendant in Knox county may be eliminated from the consideration of the case entirely for the reason that the mortgage having been recorded in Scotland county, if otherwise sufficient, imparted notice to the defendant, irrespective of the question as to where the mules were when he purchased. Treating the matter, then, as though the defendant purchased the mules in Scotland county, in which the mortgage was recorded, instead of in Knox county, as was the fact, is there sufficient therein to suggest an inquiry which would lead a third party to identify the animals? There are many mules of like kind and description in Missouri, and in every county of the State. There are likewise, no doubt, many men by the name of James Carr. Therefore, unless more appears than the descriptive words recited, no sufficient inquiry is suggested. Now if this mortgage recited that the two mules mentioned were the only mules, or all the mules owned by James Carr, we believe the description might be sufficient for such would exclude the idea that Carr might own mules other than those mortgaged, and might suggest an inquiry with respect to those involved here. [Jones on Chattel Mortgages (5 Ed.), sec. 54b.] Or if the mortgage recited that the mules were in Carr's possession or on his premises, at some place, or possibly within a certain county, it might be sufficient to suggest an inquiry which would lead a third party to identify the mules referred to by going to the premises or inquiring of the party recited to be in possession of the animals. But no such recitals are to be found in the record. Nothing whatever appears indicating where the mules were to be kept or in whose possession they were, and, in fact, there is no recital in the mortgage as to the county or...