Livestock Credit Corporation v. Corbett

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, C. J.
• Citation: Livestock Credit Corporation v. Corbett, 22 P.2d 874, 53 Idaho 190 (Idaho 1933)
• Decision Date: 26 May 1933
• Docket Number: 5900
• Parties: LIVESTOCK CREDIT CORPORATION, a Corporation, Respondent, v. J. F. CORBETT and M. G. CUMMINGS, Receiver of First National Bank of Bancroft, Appellants

22 P.2d 874

53 Idaho 190

LIVESTOCK CREDIT CORPORATION, a Corporation, Respondent, v. J. F. CORBETT and M. G. CUMMINGS, Receiver of First National Bank of Bancroft, Appellants

No. 5900

Supreme Court of Idaho

May 26, 1933

CHATTEL MORTGAGES-CROPS-DESCRIPTION OF PROPERTY-DURATION OF LIEN-NEW TRIAL.

1. Where appellant failed to file briefs and was not present or represented by counsel at argument, his appeal will be dismissed.

2. Where chattel mortgage was given to secure pre-existing indebtedness, creditor was not innocent mortgagee for valuable consideration (I. C. A., sec. 44-1001).

3. Description of property in chattel mortgage is sufficient if it will enable third person, aided by inquiries suggested by instrument, to identify property (I. C. A., sec. 44-1001).

4. Life of chattel mortgage does not extend beyond maturity of note it was given to secure (I. C. A., sec. 44-1001).

5. Chattel mortgage on "all hay grown or now growing, or to be grown, on all lands owned, leased or controlled by mortgagor during life of this mortgage," was sufficiently definite to cover hay raised in 1931, where mortgage was dated November 28, 1930, and was given to secure note payable December 5, 1931 (I. C. A., sec. 44-1001).

6. Chattel mortgage on all personal property on described land in named county and "also all hay grown or now growing or to be grown, on all lands owned, leased or controlled by mortgagor," sufficiently described other land in county owned by mortgagor, on which hay was raised (I. C. A., sec 44-1001).

7. To warrant new trial for newly discovered evidence it must appear that evidence will probably change result; that it was discovered since trial; that it could not have been discovered before trial by due diligence; and that it is material and not cumulative or impeaching.

8. Denial of new trial is not error where newly discovered evidence might have been produced by due diligence before or at time of trial, or where no sufficient reason is disclosed why evidence could not have been produced at trial.

9. Party is bound to know of materiality of testimony except in case of surprise at trial, and where he fails to move for continuance to obtain evidence, he is not entitled to new trial on ground that evidence obtained after trial was "newly discovered."

10. Denial of new trial was not abuse of discretion where no motion for continuance was made, and alleged newly discovered evidence was or should have been known to defendant or his attorney prior to filing of action by plaintiff.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action to foreclose chattel mortgages. Judgment for plaintiff. Affirmed. Appeal of J. F. Corbett dismissed.

Judgment and order denying motion for new trial affirmed with costs to respondent.

Black &amp Baum, for Appellant M. G. Cummings, as Receiver.

B. A. McDevitt, for Appellant Corbett.

The mortgage so sought to be foreclosed by the said plaintiff, in so far as it refers to a certain crop, namely, the crop grown for the year 1931, contains such an insufficient description that it is void for uncertainty, and likewise does not give constructive notice, or any notice, to a purchaser in good faith, or to a subsequent encumbrancer. (5 Cal. Jur., sec. 12, pp. 54, 55; Commercial State Bank v. Interstate Elevator Co., 14 S.D. 276, 85 N.W. 219, 86 Am. St. 760; 5 R. C. L., p. 429, par. 62; Hall v. Glass, 123 Cal. 500, 56 P. 336, 69 Am. St. 77.)

The motion for new trial should have been granted. Appellant made a showing of newly discovered evidence, material to him, and which he could not, with reasonable diligence, have discovered and produced at the trial. (State v. Stowe, 3 Wash. 206, 28 P. 337, 14 L. R. A. 609; McAllister v. Bardsley, 37 Idaho 220, 215 P. 852; Twin Springs Placer Co. v. Upper Boise Hydraulic Co., 6 Idaho 687, 59 P. 535.)

Merrill & Merrill, for Respondent.

An antecedent debt is sufficient consideration for a mortgage, yet the acceptance of the same does not place the mortgagee in the position of a bona fide purchaser. (Hansbrough v. D. W. Standrod & Co., 49 Idaho 216, 286 P. 923.)

A chattel mortgage on crops to be grown "during the continuance of the mortgage" is sufficiently definite as to the term notwithstanding the fact that the mortgage could only be given for a limited time. (Hall v. Glass, 123 Cal. 500, 56 P. 336, 69 Am. St. 77.)

Descriptions in chattel mortgages enabling third person aided by suggested inquiries to identify the property is sufficiently definite. (Securities State Bank v. Schomberg, 119 Neb. 598, 230 N.W. 487; 11 C. J. 468, sec. 96; First Nat. Bank of Bristow v. Rogers, 24 Okla. 357, 103 P. 582.)

In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative or impeaching. (20 R. C. L., p. 289, sec. 72; 20 Cal. Jur., p. 84; 46 C. J., p. 460.)

BUDGE, C. J. Givens, Morgan, Holden and Wernette, JJ., concur.

OPINION

BUDGE, C. J.

Respondent commenced this action to foreclose two chattel mortgages given by J. F. Corbett to it, securing promissory notes for $ 6,500 and $ 1,000 respectively. These mortgages are dated November 28, 1930, were acknowledged December 2, 1930, were filed for record December 4, 1930, covered the same property and are worded alike, except as to reference to the respective notes. They purport to mortgage all of the sheep, cattle and horses owned by the mortgagor, "also all hay grown or now growing, or to be grown, on all lands owned, leased or controlled by the Mortgagor(s) during the life of this mortgage; . . . . "

On December 4, 1930, J. F. Corbett executed and delivered to the First National Bank of Bancroft a chattel mortgage for $ 3,000, to secure a pre-existing indebtedness, covering all of the livestock set out in respondent's mortgages and also the mortgagor's "entire interest in those certain crop or crops of any and every nature, now sown and growing or to be hereafter sown or grown during the years 1931 & 1932," on 160 acres of land in Bannock county, particularly described, which is referred to in the testimony as the "Bancroft place." This mortgage was filed for record December 6, 1930, and recites therein that it is "subject to chattel mortgage now recorded." Subsequently to the execution of this mortgage appellant was appointed receiver of the First National Bank of Bancroft, and filed an answer to respondent's complaint in foreclosure, in which he admitted that the mortgages of the respondent were first and prior to the bank's mortgage on all of the property save and except the hay grown during the year 1931 on the Bancroft place. J. F. Corbett, during the year 1931, harvested on the Bancroft place the 50 tons of hay involved here, which was sold by agreement of the parties and the proceeds paid into court.

Upon such issues the cause was tried by the court which made its written findings of fact and conclusions of law, including findings to the effect that respondent's mortgages covered the hay in question, and conclusions of law to the effect that respondent's mortgages were a first and prior lien upon such hay, and made and entered its judgment in favor of respondent. Thereafter appellant M. G. Cummings made a motion for a new trial, which was overruled. J. F. Corbett and M. G. Cummings thereafter appealed from the judgment and the latter also appealed from the order denying the motion for new trial.

At the hearing respondent moved to dismiss the appeal of J. F. Corbett on the ground that he had failed to file briefs and was not present or represented by counsel at the argument of the case. The motion was not opposed and the record supports the grounds of the motion. The appeal of J. F. Corbett is therefore dismissed.

By his first four assignments of error appellant attacks the validity of respondent's mortgages on the ground that the description therein is insufficient by reason of its failure to specify the year in which the hay was to be grown and to particularly describe the land on which it was to be raised.

At the outset it should be observed that since appellant's mortgage was given to secure a pre-existing indebtedness he is not in the position of an innocent mortgagee for a valuable consideration. (Anglo-American Mill Co. v. Community Mill Co., 41 Idaho 561, 569, 240 P. 446.)

The general rule as to the sufficiency of chattel mortgage descriptions, applicable to both objections urged by appellant, is announced in McConnell v. Langdon, 3 Idaho 157, 163, 28 P. 403, 405, as follows:

"A description of property is sufficient if it will enable a third person, aided by inquiries suggested by the instrument, to identify the property."

With respect to the year in which the crop was to be grown, I. C. A., sec. 44-1001, provides that a valid mortgage may be made " . . . . upon crops to be planted, sown or grown within two years after the execution of the mortgage, but not upon crops to be planted, sown or grown more than two years after the execution thereof; . . . . "

Respondent's mortgages covered "all hay grown or now growing, or to be grown, on all lands owned, leased or controlled by the Mortgagor(s) during the life of this mortgage"; each of the notes for which the respective mortgages were given as security and the mortgages were dated November 28, 1930, and the notes became due and payable on December 5, 1931. It follows that "the life of the mortgage" did not...