Richardson v. Alpena Lumber Co.

• Decision Date: 21 January 1879
• Citation: 40 Mich. 203
• Court: Michigan Supreme Court
• Parties: Chas. W. Richardson et al. v. The Alpena Lumber Co

40 Mich. 203

Chas. W. Richardson et al. v. The Alpena Lumber Co

Supreme Court of Michigan

January 21, 1879

January 9, 1879; January 10, 1879, Submitted

Error to Alpena. Submitted January 9 and 10. Decided January 21.

Judgment affirmed with costs.

Kelley & Clayberg for plaintiff in error. A mortgage on a stock of goods is not void for uncertainty, People v Bristol, 35 Mich. 28, and cases; nor one upon a drove of cattle, Brown v. Holmes, 13 Kan. 482; any description is sufficient that enables third persons to identify the property, aided by inquiries which the mortgage itself indicates, Lawrence v. Evarts, 7 Ohio St 194; and if good between the parties it is good as to all who have actual knowledge, American Cigar Co. v. Foster, 36 Mich. 368; Robson v. Mich. Cent. R. R. Co., 37 Mich. 70; a mortgage upon a quantity of logs in the mass, with power to take possession, gives the right of selection, Call v. Gray, 37 N.H. 428; Gardner v. Dutch, 9 Mass. 427; Shumway v. Rutter, 7 Pick. 56; a mortgage is not absolutely void for an indefinite description, but may be explained by parol, Sargeant v. Solberg, 22 Wis. 132; Eddy v. Caldwell, 7 Minn. 225; Bell v. Prewitt, 62 Ill. 361; Stephens v. Tucker, 55 Ga. 543; Willey v. Snyder, 34 Mich. 60; Hardy v. Matthews, 38 Mo. 121; Bell v. Woodward, 46 N.H. 315; Midlothian etc. Co. v. Finney, 18 Gratt. 304; Wing v. Gray, 36 Vt. 261; Conkling v. Shelley, 28 N.Y. 360; Elder v. Miller, 60 Me. 118; Duke v. Strickland, 43 Ind. 494; a mortgage description that is indefinite because it covers property that is in a mass, may be made definite and valid by a separation, delivery, or taking possession under the mortgage, Morrow v. Reed, 30 Wis. 81; Weld v. Cutler, 2 Gray 195; Crofoot v. Bennett, 2 N.Y. 258; Brewer v. Salisbury, 9 Barb. 511; Croswell v. Allis, 25 Conn. 301; Read v. Wilson, 22 Ill. 377; Brown v. Webb, 20 Ohio 389; Williams v. Briggs, 11 R.I. 476.

Holmes & Carpenter for defendant in error. A sale of a stated quantity of logs does not pass title until they are measured and separated from the common mass (Whitcomb v. Whitney, 24 Mich. 486; First Nat. Bank v. Crowley, id., 492; Adams Mining Co. v. Senter, 26 Mich. 73; Ortman v. Green, id. 209; Lingham v. Eggleston, 27 Mich. 324; Hahn v. Fredericks, 30 Mich. 223, and cases) and the same rule should govern property covered by a chattel mortgage, Merrill v. Hunnewell, 13 Pick. 213; Young v. Austin, 6 Pick. 280; Barry v. Bennett, 7 Metc. 354; the property should be so described that it may be readily distinguished from other property of the same nature with which it is commingled, Montgomery v. Wight, 8 Mich. 143; Golden v. Cockril, 1 Kan. 259; McCord v. Cooper, 30 Ind. 9; if it cannot be identified, the mortgage will be void as to third parties, Herman on Chattel Mortgages, p. 89; a mortgage of personal property, as well as of real estate, may be void for uncertainty (Rood v. Welch, 28 Conn. 157; Blakely v. Patrick, 67 N.C. 40; Waldo v. Belcher, 11 Ired. 609) and registration will not make it valid, Bullock v. Williams, 16 Pick. 33; McCord v. Cooper, 30 Ind. 9; and if oral testimony leaves its meaning indefinite, it will be held void for uncertainty, Smith v. Crawford, 81 Ill. 296; Colcord v. Alexander, 67 Ill. 581.

Marston, J. The other Justices concurred.

OPINION

Marston, J.

The Alpena Lumber Company brought an action of trover to recover the value of certain logs purchased by defendants below at a mortgage sale.

Both parties claim title through the firm of B. Cushman & Co., the defendants, under two chattel mortgages given January 20th and June 12th, 1874, and a sale thereunder; the plaintiff, under a chattel mortgage given August 14th, 1874, with authority to sell thereunder, given afterwards, and other instruments not necessary to refer to.

The plaintiff below, defendant in error, was under the undisputed facts clearly entitled to recover, if the two mortgages of January 20 and June 12 were void for uncertainty. The court instructed the jury that they were void, and this is the only question we consider of any present importance. It appeared that at the time these two mortgages were given, B. Cushman & Co. had a large quantity of logs in Thunder Bay River; that in January, 1874, they had over a million feet of logs marked O dot K, and that on the 20th of that month they gave Julius Meyers a chattel mortgage on "one hundred thousand feet of white pine saw logs, now on the North Branch so called of Thunder Bay River." These logs were farther described as having been cut during the winter of 1873-4, but the particular logs mortgaged, or intended to be, were in no way designated, described or separated from the entire mass bearing the same mark. B. Cushman & Co. also had a large quantity of logs marked O K, and on the 20th day of June, 1874, they gave A. Anspach & Co. a chattel mortgage on "one hundred thousand feet (board measure) white pine saw logs marked O K, now lying within the limits of Thunder Bay River Boom Company."

The particular hundred thousand feet intended to be covered by this mortgage were in no way separated or designated from the mass bearing the same mark.

The parties under whom the Alpena Lumber Company claimed title acquired chattel mortgages on all the logs bearing these marks August 14th, 1874. Some time in the fall of 1874, about the last of October, the sheriff of Alpena county took possession of a quantity of the O K and O dot K logs, and it is claimed with the consent of the mortgagors. No attempt had been made up to this time by either the mortgagors or mortgagees to take possession, or separate or designate in any way from the common mass any of the logs intended to be embraced in the Meyers or Anspach & Co. mortgages. Third parties therefore having acquired rights in and to all the logs bearing these marks, prior to the time the sheriff took possession of any logs, and prior to the time of any separation thereof,--as against such third parties can these mortgages be held valid and effectual?

It will thus be seen that the question as to whether these mortgages are void for uncertainty or not, does not arise between the mortgagor and mortgagees, and it must also be borne in mind that while one hundred thousand feet of logs taken as they would run, from a larger quantity put in from off the same lands might be but an average in quality and value, yet that one hundred thousand feet could be assorted from amongst the common mass that would average in quality and value much higher than those remaining, and so there could be a like quantity taken out that in quality and value would be very much below an average. This case, therefore, does not call for any opinion as to what the law would be in a case arising between the mortgagor and mortgagee, where the rights of third parties had not intervened, or in a case where no discrimination could be...