Hart County Deposit Bank v. Hatfield

• Decision Date: 19 December 1930
• Citation: 236 Ky. 725,33 S.W.2d 660
• Parties: HART COUNTY DEPOSIT BANK et al. v. HATFIELD et al.
• Court: Kentucky Court of Appeals

33 S.W.2d 660

236 Ky. 725

HART COUNTY DEPOSIT BANK et al. v. HATFIELD et al.

Court of Appeals of Kentucky

December 19, 1930

Appeal from Circuit Court, Hardin County.

Proceeding between the Hart County Deposit Bank and others and H. M Hatfield and others, involving a question of priority among several liens claimed by the creditors of G. M. Rider. From the judgment rendered, the Hart County Deposit Bank appeals.

Reversed with directions.

LOGAN and GRIGSBY, JJ., dissenting in part.

Haynes Carter, of Elizabethtown, for appellants.

Faurest & Faurest, of Elizabethtown, for E. T. Walker.

D. M Cooper, of Elizabethtown, for Hatfield & Hatfield.

WILLIS J.

This appeal presents a question of priority among several liens claimed by creditors of G. M. Rider. The Hart County Deposit Bank claims a first lien by virtue of a chattel mortgage. E. T. Walker bases his claim of lien upon an execution, and H. M. Hatfield asserts an attachment lien. The circuit court adjudged the mortgage subordinate to both of the other lien claims, and the bank has prosecuted an appeal. It is insisted that the bank did not obtain priority by virtue of its recorded chattel mortgage because the description of the property therein contained was insufficient to afford constructive notice of its contents. Another ground of invalidity is asserted, but the conclusions we have reached render it unnecessary to notice it. The description in the mortgage was as follows:

"Two black horse mules, nine and ten years old; two bay mare mules, nine and ten years old; two bay horse mules, old; Four hundred (400) bushels of corn; 1 Acre of tobacco; six (6) tons of hay; two (2) cows; all farming tools, consisting of two (2) wagons, three (3) cultivators, two walking plows, one riding plow, one tobacco setter, one disc harrower, one smooth harrower, one mower."

The mortgage failed to give the address of the mortgager, the location of the property, or other descriptive details. It did not expressly state the ownership of the property, or mention the county or state where it could be found. The usual method of describing personal property of the character involved is by reference to the present ownership, the source of title, the present physical possession, the usual location, or some particular description of the property sufficient to identify it or to distinguish it from other similar things. We are constrained to the conclusion that the description in the present instrument was not sufficient to conform to the established rule upon that subject. Hauseman Motor Co. v. Napierella, 223 Ky. 433, 3 S.W.2d 1084. Since constructive notice was not imparted by the recording of the mortgage, the holder thereof did not obtain priority over the execution lien acquired by Walker. Ky. St. § 496; American Nat. Bank v. John Van Range Co., 211 Ky. 849, 278 S.W. 133.

But a different question is presented as respects the attachment lien claimed by H. M. Hatfield. His affidavit for an attachment was defective, in that it omitted to state the amount the affiant believed the plaintiff ought to recover. Section 196 of the Civil Code of Practice provides that an order of attachment shall be made by the clerk of the court in which the action is brought or pending in any case mentioned in section 194, subdivisions 1 and 2, if an affidavit be filed in his office showing: (1) The nature of the plaintiff's claim; (2) that it is just; (3) the sum which the affiant believes the plaintiff ought to recover; and (4) the existence of any of the grounds for an attachment mentioned in subdivisions 1 and 2 of section 194; or, in the case mentioned in subdivision 3 of section 194, if it be shown by such affidavit, or by the return of the sheriff upon the order of delivery for the property claimed, that the facts mentioned in that subdivision exists. It is the rule that the omission of the affidavit for an attachment to state that the claim is just is fatal to the lien. Frick & Lindsay v. Lantz & Ogden, 199 Ky. 354, 251 S.W. 196. The same rule necessarily applies when the affidavit omits to state the sum which the affiant believes the plaintiff ought to...