Kenyon v. Framel

• Decision Date: 23 April 1886
• Citation: 28 N.W. 37,71 Iowa 693
• Parties: KENYON v. FRAMEL AND OTHERS.
• Court: Iowa Supreme Court

71 Iowa 693

28 N.W. 37

KENYON

v.FRAMEL AND OTHERS.

Supreme Court of Iowa.

April 23, 1886.

Appeal from Jasper district court.

Action to foreclose a chattel mortgage. Judgment for the plaintiff, and defendants appeal.Ryan & McElroy, for appellants, J. M. Framel and others.

Alanson Clark, for appellee, N. S. Kenyon.

SEEVERS, J.

The defendant Framel executed to the plaintiff a chattel mortgage on “fifty head of steers about (20) months old, now owned by me, and in my possession on my farm in Independence township, Jasper county, Iowa.” The mortgage was executed and filed for record on the seventh day of January, 1884. Afterwards the defendant Baker purchased 11, and the defendant Wilson 16, steers of the mortgagor. It is insisted that the description is fatally defective, and that it cannot be aided by extrinsic evidence. It appears from the evidence that the mortgagor did not have in his possession 50 steers of the age of those described at the time the mortgage was given, but he did have at least 28 steers that he had purchased of one Carr. This evidence we think was admissible for the purpose of identifying the cattle. Baker and Wilson had constructive notice of the mortgage. When they purchased the cattle, they were bound to know that plaintiff had a mortgage on 50 head of steers which were owned by the mortgagor, and were in his possession on his farm in Independence township. Now, if they had made inquiry, as they were bound to do, the cattle mortgaged could have been identified with reasonable certainty. Yant v. Harvey, 55 Iowa, 421;S. C. 7 N. W. Rep. 675. There is no uncertainty in the mortgage, or, if there is, there is sufficient description of the property to enable an honest inquirer to identify it. Smith v. McLean, 24 Iowa, 322. The ownership, possession, and location of the cattle, all are descriptive, and this distinguishes this case from at least many, if not all, of those cited by counsel for defendant.

The fact there were only 28 head instead of 50 should not have the effect to destroy the validity of the mortgage. It will still be good as to the cattle sufficiently described.

It is said that when at least one of the defendants purchased the cattle they were not in the possession of the mortgagor on his farm in Independence township, but were in the possession of one Kinty, in Clear Creek township. This is immaterial if the cattle were in the possession of the mortgagor on the Independence farm when the mortgage was executed. The evidence is not entirely clear on this point, but, as we understand, Kinty was in possession as the agent of the mortgagor. In fact he was simply taking care of them, as we understand, on land owned by the mortgagor or his wife in Clear Creek township, which was known as a part of the...