Pennington v. Jones

• Court: Iowa Supreme Court
• Writing for the Court: SEEVERS
• Citation: Pennington v. Jones, 57 Iowa 37, 10 N.W. 274 (Iowa 1881)
• Decision Date: 22 October 1881
• Parties: PENNINGTON v. JONES.

57 Iowa 37

10 N.W. 274

PENNINGTON

v.JONES.

Supreme Court of Iowa.

Filed October 22, 1881.

Appeal from Franklin circuit court.

W. A. McDowell executed a chattel mortgage to the plaintiff. The defendant as sheriff, as the plaintiff claims, levied upon and sold the mortgaged property under an execution against McDowell. The defendant had constructive notice at the time of the levy, and express notice of the mortgage before the sale. This action was brought to recover damages sustained by the plaintiff. Judgment for the defendant, and plaintiff appeals.Dow & Gilgar, for appellant.

McKenzie & Hemmingway and Harriman & Church, for appellee.

SEEVERS, J.

The mortgage was executed on the first day of February, 1879, and the property mortgaged therein was described as follows: “About 50 acres of wheat, 20 acres of oats; also 12 acres of barley, and 20 acres of corn; also two acres of buckwheat,--to be sowed and raised on the land leased of Barber McDowell, and now occupied by said W. A. McDowell, lying and being in section seventeen (17) in township of Ingham in said Franklin county, and also 115 Brahma fowls, including their products and increase.”

The plaintiff introduced the mortgage and then gave evidence tending to show the amount due thereon; that McDowell during the year 1879, and after the mortgage was executed, sowed and planted upon the land described therein 50 acres of wheat, 20 acres of barley, and about 30 acres of corn, about 10 acres of which was standing unhusked at the time the defendant made the levy on the nineteenth day of December, 1879; that plaintiff had not taken possession of said crops; and that McDowell was in possession thereof, and of the land, under a valid lease for the years 1879, 1880, and 1881. Such being the evidence, the defendant moved the court for judgment, because-- First, the chattel mortgage under which plaintiff claims “is given on crops not in existence, and of which he has never taken possession;” second, “that the description in said mortgage is insufficient and uncertain;” and, third, “that said mortgage is not a lien on crops which were taken by defendant, as alleged.” The court sustained the motion, took the case from the jury, and rendered judgment for the defendant.

In Scharfenbury v. Bishop, 35 Iowa, 60, it was held a mortgage was valid against third persons which described the property as “including any and all fixtures and stock now or hereafter kept in my said leather business in the ...