Dutton v. Gibson

• Decision Date: 18 December 1930
• Docket Number: 8 Div. 221.
• Citation: 131 So. 567,222 Ala. 191
• Parties: DUTTON v. GIBSON.
• Court: Alabama Supreme Court

131 So. 567

222 Ala. 191

DUTTON v. GIBSON.

8 Div. 221.

Supreme Court of Alabama

December 18, 1930

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Action in trover by R. L. Gibson against J. E. Dutton. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

BROWN and THOMAS, JJ., dissenting.

S. A Lynne, of Decatur, for appellant.

J Marvin Kelley, of Hartselle, for appellee.

BOULDIN J.

The plaintiff, R. L. Gibson, sued defendant, J. E. Dutton, in trover for the conversion of "two black horse mules about ten years old and weighing about 1,050 each."

Both parties claim under mortgagee from one Wallace Harroway, now deceased.

Plaintiff's evidence goes to show that during the fall of 1924 he let Harroway take the mules for their keep, looking to a future purchase of them; that on January 7, 1925, a sale was made to Harroway and mortgage to plaintiff executed contemporaneous therewith. Meantime, however, on January 1, 1925, defendant took a mortgage from Harroway, and it was duly recorded prior to the giving of the mortgage to plaintiff.

There was some evidence tending to show the mules were sold to Harroway when he took possession in the fall of 1924. A jury question was thus presented as to which mortgage, if valid should have priority.

The trial court gave the affirmative charge for plaintiff. This ruling can be justified only upon the theory that defendant's mortgage, as to these mules, is void for uncertainty of description.

The general or blanket description in defendant's mortgage, so far as pertinent, reads: "All my, or our live stock and personal property of every kind now in my or our possession and owned by me or us *** including *** mules," etc.

Obviously "my or our," "me or us," refer to the maker or makers of the mortgage, the same as "I or we" appearing in the granting clause, a form for use by one or more, as shall appear from the signature or signatures to the mortgage.

So the question is: Does a mortgage covering all the live stock in possession of and owned by the mortgagor, when duly recorded, carry constructive notice to one dealing with the mortgagor as to live stock in his possession?

The question is of such everyday concern as to call for definite decision and clear statement of the law.

In Ellis v. Martin, 60 Ala. 394, dealing with a mortgage of "my entire crop of cotton and corn of the present year," it was said: "Generality and indefiniteness of description will not avoid a conveyance. It is uncertainty that will not be removed when the conveyance is read in the light of the circumstances surrounding the parties at the time it was entered into, and their manifest design is considered. Nor can it be admitted that the necessary effect of the generality of the description is to mislead and deceive strangers dealing with the mortgagor. If purchasing from him corn or cotton, inquiry is excited, and they are bound to ascertain, and must at their peril ascertain, whether it was raised by the mortgagor in 1875."

In Smith v. Fields, 79 Ala. 335, it was said: "It must be conceded that the description-'my entire crop of cotton and corn'-is very general and indefinite; but it is capable of being made reasonably certain, without violating any rule of evidence."

Evidence that the mortgagor owned a farm and made a crop thereon that year was held admissible. The opinion proceeds: "The description of the property in the mortgage, though general, is sufficient to put on inquiry; and the defendant, purchasing from the mortgagor, was bound to ascertain whether the cotton he purchased was the same conveyed by the mortgage."

Other instances of crop mortgages are found in Hamilton v. Maas & Bro., 77 Ala. 283; Truss v. Harvey, 120 Ala. 636, 24 So. 927; Woods v. Rose & Co., 135 Ala. 297, 33 So. 41; Mitchell v. Abernathy, 194 Ala. 608, 69 So. 824, L. R. A. 1917C, 6; Avondale Mills v. Abbott Bros., 214 Ala. 368, 108 So. 31.

Turning to live stock mortgages, our cases declare the same general rules.

In Connally v. Spragins, 66 Ala. 258, it is said: "The description of the animal sued for, as 'one black mule about eight years old,' is not so general or indefinite as to avoid the mortgage, or authorize its exclusion from evidence. Such a general description may be rendered more certain when 'read in the light of circumstances surrounding the parties,' at the time the instrument was executed. And it was sufficient, when recorded, to excite the inquiry of strangers dealing with the mortgagor, and thus charge them with notice. Ellis v. Martin, 60 Ala. 394."

In Tompkins v. Henderson & Co., 83 Ala. 391, 3 So. 774 (an action of detinue by mortgagee against purchaser under execution sale as the property of the mortgagor), the mortgage described the property as a "black mare mule." The case was complicated by evidence that the mule sued for was a "dark mouse-colored mare mule." Evidence was admitted to show the mortgagor (defendant in execution) had no other mules than the two described in the mortgage as "black mare mules."

The mortgage was held admissible, and the rule declared that, if the description of the property was sufficient to put the parties on inquiry, which, if followed up, would have led to knowledge of the identity of the mule, it was sufficient.

In Stickney v. Dunaway & Lambert, 169 Ala. 464, 53 So. 770 (action of detinue between mortgagee and purchaser from mortgagor), the description was "one sorrel mule colt Traveller." One issue was whether the mule could be called a sorrel. That case, defining the legal test of the sufficiency of description in a chattel mortgage as against third persons, adopts as in accord with our former decisions, the rule stated by Judge Freeman (169 Ala. 468, 53 So. 770, 771): "The mortgage *** must point out the subject-matter of it, so that such persons (purchasers) by it, together with such inquiries as the instrument suggests, may be able to identify the property intended to be covered."

This rule has been repeatedly followed by this court as applicable to both crop mortgages and live stock mortgages. Avondale Mills v. Abbott Bros., 214 Ala. 368, 108 So. 31; Mitchell v. Abernathy, 194 Ala. 608, 69 So. 824, L. R. A. 1917C, 6; Hammond v. Cabaniss, 213 Ala. 221, 104 So. 320.

With singular unanimity this is the standard test adopted by courts and text-writers throughout the country.

Thus writes Mr. Jones: "A description which will enable third persons, aided by inquiries which the instrument itself suggests to identify the property, is sufficient." Jones on Chattel Mortgages (5th Ed.) § 55. To like effect, see Pingrey, Chattel Mortgages, § 143; 11 C.J. 458, and long line of cases, note 36; 5 R. C. L. p. 424, § 55.

In applying this rule, the inquiries suggested by the instrument vary with the subject-matter. Dealing with certain classes of chattels, the location of same is often stressed as an important element of description. Location is not an exclusive or essential element of description.

As regards live stock and the like, possession and ownership are frequent means of identification. Possession is a fact provable as other facts. It is one means of locating and identifying chattels.

There are cases where a number of live stock or other chattels are called for, and on inquiry it appears they are only a part of a collection, group, or herd, with no descriptive data whatever to distinguish one from the other. This was an element in the case of Wood v. West Pratt Coal Co., 146 Ala. 479, 40 So. 959.

But a description calling for all the live stock in possession of and owned by the mortgagor sufficiently informs every one about to acquire same from the mortgagor; the purchaser or second mortgagee must ascertain at his peril whether such property is covered by the recorded mortgage as it purports to be. One about to deal with a mortgagor has knowledge of his whereabouts and of the location of the chattel he is acquiring or has the means at hand to ascertain these facts. This is the logical result of our decisions, the legal test we have adopted, and of the authorities we have approved. Jones on Chattel Mortgages, § 54-b; 11 C.J. pp. 457, 458, and page 465.

The case of Stewart v. Clemens, 220 Ala. 224, 124 So. 863, 66 A. L. R. 1454, dealing with a description of live stock like that here involved, is not in harmony with our former decisions, and, in so far as opposed to this decision, is hereby overruled.

Reversed and remanded.

ANDERSON, C.J., and SAYRE, GARDNER, and FOSTER, JJ., concur.

THOMAS and BROWN, JJ., dissent.

BROWN J. (dissenting).

The litigation in Stewart v. Clemens, 220 Ala. 224, 124 So. 863, 66 A. L. R. 1454, as here, was not between the parties to the mortgage, and here the litigation is between two alleged mortgagees, the plaintiff claiming under two mortgages executed by Wallace Harroway to plaintiff to secure the payment of the purchase money for the mules, in which the mules are described as "One black horse mule 9 yrs old weight about 1050 lbs. One black horse mule 9 yrs old weight about 1050 lbs. Both mules known as C. F. Moore mules." Said mortgages were executed on the 7th day of January, 1925, and filed for record in the probate office of Morgan county on February 10, 1925, at 1 o'clock p. m.

The defendant claimed title to the mules under a mortgage note, executed on the 1st day of January, 1925, and recorded on January 2, 1925, in the following words:

"On or before the 1st day of Oct. 1925, I, or we, promise to pay J. E. Dutton, at his office in Danville, Alabama, R. F. D. No. 1, the sum of $285.00, Dollars, for value received, with _____ interest from maturity and to secure the payment of this note and agree to pay a record

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