Hammond v. Cabaniss

• Decision Date: 16 April 1925
• Docket Number: 2 Div. 862
• Citation: 104 So. 320,213 Ala. 221
• Parties: HAMMOND v. CABANISS et al.
• Court: Alabama Supreme Court

104 So. 320

213 Ala. 221

HAMMOND v. CABANISS et al.

2 Div. 862

Supreme Court of Alabama

April 16, 1925

Rehearing Denied May 28, 1925

Appeal from Circuit Court, Hale County; S.F. Hobbs, Judge.

Bill by L. Hammond, as trustee, against E.H. Cabaniss, Jr., and others, to foreclose a chattel mortgage or deed of trust. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed, rendered, and remanded.

Thos E. Knight, Jr., and Thos. E. Knight, both of Greensboro, for appellant.

R.B Evins, of Birmingham, for appellees.

BOULDIN J.

The bill is to foreclose a chattel mortgage in form of a deed of trust. Respondents claim through the mortgagor, relying upon title acquired subsequent to the execution and record of the mortgage. Demurrers challenge the sufficiency of the description of the property to charge third persons with constructive notice of the mortgage.

The granting and descriptive clause reads:

"In consideration of $10, cash in hand paid, I hereby convey and warrant to L. Hammond, trustee, the following described property in Hale county, Ala., to wit:

"27 head cows and heifers and Jersey bulls, 1 bay horse named Wilson, 4 head Duroc Jersey sows, or any cows, hogs, or bulls, or their increase that may be in his possession during the life of this trust deed. 1 No. 12 Delaval cream separator."

The bill further avers that, at the time of the execution and record of the mortgage, the mortgagor resided in Hale county Ala., and had the live stock in his possession in that county; and that respondents now in possession reside in Hale county. " 'As against third persons the mortgage must point out the subject-matter, so that the third person may identify the property covered, by the aid of such inquiries as the instrument itself suggests.' 6 Cyc. 1022; Jones on Chat.Mort. § 55; Stickney v. Dunaway, 169 Ala. 464, 53 So. 770." Mitchell v. Abernathy, 194 Ala. 608, 609, 69 So. 824, 825 (L.R.A.1917C, 6).

If the description itself, together with such inquiries as the instrument suggests, will enable a person of reasonable prudence to identify the property covered by the mortgage, it is sufficient. Accordingly, a mortgage of live stock by general description, accompanied with further descriptive matter giving the location of the property and the name of the person in possession, is sufficient. Stickney v. Dunaway, 169 Ala. 464, 53 So. 770; Hurt v. Redd & Co., 64 Ala. 85; Connally v. Spragins, 66 Ala. 258; Woods v. Rose & Co., 135 Ala. 297, 33 So. 41; Varnum v. State, 78 Ala. 28; Ellis v. Martin, 60 Ala. 394; 11 C.J. 465, 466, §§ 90, 91, 92.

It is suggested that the description above imports possession of the property in ...