Norris v. Hix

• Decision Date: 24 May 1888
• Citation: 38 N.W. 395,74 Iowa 524
• Parties: NORRIS v. HIX.
• Court: Iowa Supreme Court

74 Iowa 524

38 N.W. 395

NORRIS

v.HIX.

Supreme Court of Iowa.

May 24, 1888.

Appeal from district court, Story county; D. D. MIRACLE, Judge.

Action for the recovery of specific personal property, brought by A. M. Norris against Seymour Hix. Judgment for plaintiff. Defendant appeals.Dyer & Fitchpatrick and J. F. Martin, for appellant.

C. H. Balliet, for appellee.

REED, J.

The property in controversy is a quantity of oats raised by John Reeve in the year 1886. On the 11th day of March of that year, Reeve executed to plaintiff his promissory note for $1,500; and to secure the same gave a chattel mortgage on “all crops of every kind and description grown, during the year 1886, on the following premises, to-wit: The north-east quarter of section twenty-eight, (28,) and the east half of the south-west quarter of the north-east quarter, and the north-east quarter of the south-east quarter, of section twenty-one, (21,) in township 84, range 21, Story county.” On the 12th of May following, he executed to the First National Bank of Nevada his promissory note of $330, and to secure the same gave a chattel mortgage on all personal property and crops on the same premises. That mortgage, however, provides that it shall be subjected to all other liens on the property. The oats in question were grown on the premises described in the mortgages, but they were sown after plaintiff's mortgage was executed. After they were harvested and threshed, defendant, who was then the owner of the second mortgage, seized them under that mortgage. In addition to a general denial, he pleaded that plaintiff's mortgage was without consideration; that it was given for the fraudulent purpose of hindering and delaying creditors; and that the debt secured by it had been fully paid.

1. The district court ruled that plaintiff would be entitled to recover upon proof that his mortgage was given as security for an existing debt, and that some portion of the debt remained unpaid, unless the allegation of fraud was established. The exceptions urged by counsel to that ruling are: (1) That, as the property was not in esse when the mortgage was given, it was not the subject of sale, and consequently the instrument was void from the beginning; and (2) the description contained in the mortgage, to-wit, “all crops grown, during the year 1886, on the * * * premises,” does not cover or include crops not then planted or grown. The first objection is disposed of by the holding of this court in Wheeler v. Becker, 68 Iowa, 723, 28 N. W. Rep. 40;Scharfenburg v. Bishop, 35 Iowa, 60;Brown v. Allen, Id. 306; and other cases. We think, also, that the second objection is not well taken. If the language of the description were to be taken literally, and the interpretation was not aided by the circumstances, perhaps the position of counsel could be maintained. Literally, the words made use of are descriptive of crops already grown, rather than those to be grown; and, if the instrument had been executed near the end of the year, that meaning would be attributed to them. But every one knows that crops could not have been grown on the premises, in the year 1886, before the date of the mortgage, and it is absolutely certain that the parties never intended that it should cover crops then grown. The rule, generally expressed, undoubtedly is that “a chattel mortgage will not be deemed to cover...