King v. Howell
| Citation | 62 N.W. 738,94 Iowa 208 |
| Parties | KING v. HOWELL, SHERIFF. |
| Decision Date | 05 April 1895 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from district court, Wright county; N. B. Hyatt, Judge.
Action to recover specific personal property. The court directed the jury to return a verdict for plaintiff, and defendant appeals. Reversed.C. M. Nagle, for appellant.
Ladd & Rogers, for appellee.
In this action plaintiff sought to recover the possession as absolute owner of certain property, and as qualified owner under a chattel mortgage of certain other personal property, described as follows: 100 acres of corn now growing on the N. W. 1/4 of section 17, and the S. W. 1/4 of section 8, in township 92, range 24, Wright county, Iowa, worth $350; one McCormick mowing machine; and three stacks of hay,--which he alleges defendant wrongfully detains possession of. The chattel mortgage under which plaintiff claims was executed by one W. H. King on August 25, 1893, to secure a note of $1,500, and, so far as material, contained the following description: “All hay in stack belonging to me, now on southwest one-fourth, section 8, and northwest one-fourth of section 17, all in township 92--24 west 5th P. M., Iowa; also, corn now growing on the above-described land; also, one McCormick mower, * * * and all other farm machinery and farm implements now owned and kept by me.” Defendant claims to hold the property in question by virtue of having levied upon the same on August 26, 1893, under two certain writs of attachment issued from the district court of Wright county, in favor of C. Q. Hartshorn and Charles Rotzler against W. H. King, and denies that plaintiff is the owner of, or that he holds a mortgage upon, any of the property described. Before the trial was concluded, plaintiff released his claim to all the property except that said to be covered by the mortgage.
The evidence shows that at the time the mortgage was executed, and at the time it was first filed for record, which was on August 25, 1893, the hay in the stack and the growing corn was described as being on the S. W. 1/4, section 8, and N. W. 1/4, section 17, township 91, range 24. This was evidently a mistake in the township, for the mortgagor was not living in township 91, and had no land or property there answering the description given in the mortgage. He did live on and cultivate land in township 92, where this property was located. The mistake was discovered in two or three days, and, with the consent of the mortgagor, the figures “91” were changed to “92,” and the mortgage re-recorded on August 29th, after the levy on the property. It was shown, over defendant's objection, that before the levy of the writs of attachment the sheriff was informed by the mortgagor that plaintiff had a mortgage upon the property taken. The mortgage described the hay as follows: “All hay in stack belonging to me now on the S. W. 1/4 of section 8, and on N. W. 1/4, section 17, all in township 91--24 west of the 5th P. M., Iowa.” From the evidence it appears that W. H. King had no hay in township 91, range 24. The only hay in stack he had was on sections 8 and 17, township 92, range 24. There he had three stacks. It seems to us that the description is such as to enable third persons, aided by inquirieswhich the instrument itself suggests, to identify the hay, and that, while the township is incorrectly stated, yet, rejecting this false recital, sufficient remains to identify the property. The maxim, “Falsa demonstratio non nocet,” is applicable. Rowley v. Bartholemew, 37 Iowa, 374;Smith v. McLean, 24 Iowa, 322; Pettis v. Kellogg, 7 Cush. 456; Harris v. Kennedy (Wis.) 4 N. W. 651;Adamson v. Peterson (Minn.) 29 N. W. 321;Tolbert v. Horton (Minn.) 22 N. W. 126;Adamson v. Fagan (Minn.) 47 N. W. 56;Yant v. Harvey, 55 Iowa, 421, 7 N. W. 675. Tested by this rule, the description of the mower is sufficient. It is described as “one McCormick mower, * * * and all farm machinery now owned and kept by me.” The description of the corn is less definite. It is as follows: “Also, all corn now growing on the above-described land.” The land described is the S. W. 1/4, section 8,...
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