Frick v. Fritz
| Decision Date | 29 January 1902 |
| Citation | 88 N.W. 961,115 Iowa 438 |
| Parties | P. C. FRICK, Administrator, v. M. L. FRITZ, Defendant, and MORRIS AND CUSHBERT, Interveners, Appellants |
| Court | Iowa Supreme Court |
Appeal from Cedar Rapids Superior Court.--HON. T. M. GIBERSON Judge.
PLAINTIFF is a judgment creditor of the defendant Fritz, and claims the personal property in controversy under the levy of an attachment. The interveners claim it as mortgagees of Fritz. Trial to the court, and judgment for the plaintiff. The interveners appeal.
Reversed.
Hubbard Dawley & Wheeler for appellants.
Crissman Trewin & Holbrook for appellees.
OPINION
July 20, 1898, the interveners sold and delivered to the defendant Fritz 101 yearling and two year old steers at the agreed price of $ 2,323, and took his note therefor, and a chattel mortgage on the cattle securing the same. The description of the cattle in the mortgage is as follows: "One hundred and one yearlings and two years olds, branded with the letter F on left hip." The mortgage recites that it is given for the purchase price, that the property is unincumbered, and that it is in possession of the mortgagor in "Rodman, Palo Alto county, Iowa." It was properly recorded on the sixth day of August, 1898. On the twenty-first day of October, 1898, the interveners sold and delivered to Fritz 2 two year old steers and 18 yearling steers for the agreed price of $ 530, and took his note therefor, secured by a mortgage executed on the same day, and properly recorded on the first of November, 1898. The following is the description of the property given in the mortgage: These mortgages were both recorded before the levy of the attachment in this case, and the plaintiff, through his attorney, had in his possession certified copies of both when the levy was directed and made. It is also clearly proven that the plaintiff's attorneys had been told by Fritz before the levy that his cattle were mortgaged for about all they were worth to Morris & Co., or to Morris and his partner. The name of the mortgagee given by Mr. Fritz is not clearly shown.
The first question for solution in this case is that of the validity of the first mortgage as between the mortgagor and the mortgagee, for it is evident that, if it is not a valid mortgage as between them, the controversy thereover between the mortgagee and the attaching creditor is at an end. No particular formality is necessary to make a mortgage valid as between the mortgagor and the mortgagee. Glover v. McGilvray, 63 Ala. 508; Janes v. Penny, 76 Ga. 796; Wilmerding v. Mitchell, 42 N.J.L. 476; Merchants' & Mech. Sav. Bank v. Lovejoy, 84 Wis. 601 (55 N.W. 108); Whiting v. Eichelberger, 16 Iowa 422. Nor, as between them, need it be in writing. 5 Am. & Eng. Enc. Law (2d Ed.) 954, and notes.
The kind or species of yearlings and two year olds mentioned in the mortgage is not stated, and the question arises whether, as between the parties to the instrument, the kind of stock intended to be mortgaged by them may be shown by parol. It is the general rule, sustained by nearly all of the authorities, that parol evidence is admissible for the purpose of identifying the property actually mortgaged,--in other words it is not necessary that the property be so particularly described that it may be selected or pointed out by any one from an inspection of the mortgage itself; and the cases are numerous in which a resort to parol evidence for the purpose of identification, even where the rights of third parties have been affected thereby, has been sustained. In this case, however, something more than the mere selecting or pointing out of the particular animals of a certain kind or species named in the mortgage is sought. Here the appellant seeks to show by parol what the species or kind is that the language of the mortgage was intended to cover. So far as the description goes, it is absolutely correct, and the admission of parol evidence as to the species of property intended to be covered thereby will not change or enlarge it so as to make it cover something not included in its terms, for it purports to cover a given number of head of some kind of stock. This is at once apparent upon examination of the instrument, so that such evidence would simply supply a missing word in the description of the stock. It is held that, "where parol evidence serves to apply the description of the subject matter intended to be embraced by it, and not to change the description, it is admissible." Nicholas v. Barnes, 3 Dak. 148 (14 N.W. 110). The principle involved here is not different from that which permits identification of the property by parol evidence when the mortgage covers "all personal property of which the mortgagors are possessed," and the cases are many in which it is held that such a mortgage is valid as to chattels in the possession of the mortgagor at the time of its execution, and that parol evidence is admissible to identify them. Harris v. Allen, 104 N.C. 86 (10 S.E. 127). It is a general rule, deducible from the authorities, that parol evidence is always admissible to identify mortgaged chattels. Cobbey, Chattel Mortgage, section 166, and cases cited therein. "Descriptions of property do not of themselves identify the property, but furnish the means or data from which the property is to be identified." "Descriptions of property in chattel mortgages are to be applied and interpreted in the light of the facts and circumstances known to the parties at the time the mortgage be made." Id. section 155; 5 Am. & Eng. Enc. Law (2d Ed.) 964, and note 4; Smith v. McLean, 24 Iowa 322. And see note 14 Am. St. Rep. 239, Barrett v. Fisch, 76 Iowa 553, 41 N.W. 310.
The appellant contends that the omission to name the species of stock mortgaged creates a patent ambiguity in the instrument which cannot be explained or helped by parol evidence, and says that it might apply as well to "cattle, heifers, steers, bulls, horses, mules, sheep, swine, or goats." We quite agree with the argument that it may be so applied when standing alone, but, such being the case, a latent ambiguity is created, and nothing more, for "if the language of the document, though plain in itself, applies equally well to more objects than one, evidence may be given both of the circumstances of the case and of statements made by any party to the document as to his intentions in reference to the matter to which the document relates." Stephen, Digest Evidence, 169; Greenleaf, Evidence, sections 289, 290, 297; Chambers v. Watson, 60 Iowa 339, 14 N.W. 336; Beach, Modern Contract, section 742; St. Luke's Home for Indigent Christian Females v. Association for Relief of Respectable Aged Indigent Females, 52 N.Y. 191, 198 (11 Am. Rep. 697). It is also competent to prove the fact that the language "yearlings and two year olds" had a particular meaning, as used by the grantor, if such is the case; for, if he was in the habit of, or if in this particular case he used the term with a specific meaning, it may be shown by parol. That he did so use it is almost conclusively evidenced by the mortgage itself, because it says that it is given for the purchase price of the yearlings and two year olds, and that they are in his possession. We are clearly of opinion that parol evidence is competent to show the species of stock mortgaged in this instance, and that the mortgage must be held valid and enforceable as against the mortgagor. Cobbey, Chattel Mortgages, sections 186-188; Clapp v. Trowbridge, 74 Iowa 550, 38 N.W. 411; Plano Mfg. Co. v. Griffith, 75 Iowa 102, 39 N.W. 214; Luce v. Moorehead, 77 Iowa 367, 42 N.W. 328; Smith v. McLean, supra; Call v. Gray, 37 N.H. 428 (75 Am. Dec. 141); Leighton v. Stuart, 19 Neb. 546 (26 N.W. 198.
If valid as to the mortgagor, in what situation does it leave the attaching creditors? All of the steers bought of the interveners, except a few that died, were in the possession of Fritz, within a mile or so of Rodman at the time of the levy. If it be conceded that the mortgage of July 20th did not impart notice to the plaintiff because of insufficient description of the property, we still think the plaintiff had such actual notice and knowledge of the mortgage as to make it good as to him. In the first place, his attorney visited Mr. Fritz at his home, where the cattle were kept, and in an effort to secure the payment of the claims against him sued on herein asked him if he "didn't have some cattle that he could secure him on." He was then told by Mr Fritz that his cattle were mortgaged for all they were worth to Morris & Co., or to Morris and his partner. In the second place, the attorney himself testifies that after his visit to Fritz, and before the levy, he made an examination of the records of Palo Alto county for the express purpose of finding what chattel mortgages Fritz had on his property, and says that he found only the two mortgages involved in this case, both of which purported to have been given to the interveners by Fritz. It cannot be doubted, then, that the attorney had actual knowledge that Fritz's cattle were all mortgaged. He knew that the interveners were the mortgagees because no other mortgages appeared of record. He knew that the mortgages were given for the purchase price of the stock, because they so recited; and he also knew where the stock could be found, because it was declared to be in the possession of the...
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