Hayes v. Wilcox
| Decision Date | 18 October 1883 |
| Citation | 17 N.W. 110,61 Iowa 732 |
| Parties | HAYES v. WILCOX |
| Court | Iowa Supreme Court |
Appeal from Hard in Circuit Court.
THIS is an action of replevin for one oscillating thresher, size 6, 30-inch cylinder, and one Chicago Pitts ten-horse power. The plaintiff claims the possession of the property by virtue of a chattel mortgage executed to him by one James Hayden, and alleges that the defendant, as sheriff, wrongfully detains said property by virtue of executions in his hands, which he has levied upon said property, against said James Hayden and B. Hayden. The description of property in the mortgage in question is as follows: "One oscillating thresher, size 6, 30-inch cylinder, and also, one Chicago Pitts ten-horse power." The defendant demurred to the petition upon the ground that the mortgage is void as to third parties for want of a definite description of the property. The court sustained the demurrer. The plaintiff refused to amend his petition, and the court rendered judgment for the defendant. The plaintiff appeals.
AFFIRMED.
W. A. Green, for appellant.
Albrook and Hardin, for appellee.
In our opinion the description of the property is too indefinite and uncertain to be sustained as between the mortgagee and a creditor of the mortgagor. The description is equally applicable to any thresher and any horse-power of the size and manufacture referred to. The appellant relies upon Smith & Co. v. McLean, 24 Iowa 322. An important part of the description of the property in that case was, "being the train now in my possession." In that case it is said: "That description which will enable third persons, aided by inquiries which the instrument itself indicates and directs, to identify the property, is sufficient." In Muir v. Blake, 57 Iowa 662, 11 N.W. 621, it is said: "It will be observed that in all the cases cited in Smith & Co. v. McLean, where the description was held sufficient, the locus of the property was described in such way that the instrument itself indicated where the property might be found on inquiry. The mortgage in question contains no such description or indication. As bearing on this question, see Adams v. Commercial National Bank of Dubuque, 53 Iowa 491, 5 N.W. 619; Pennington v. Jones, 57 Iowa 37; Muir v. Blake Id., 662; Eggert and Thoren v. White, 59 Iowa 464. The demurrer was properly sustained.
AFFIRMED.
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