Scrafford v. Gibbons

• Citation: 44 Kan. 533,24 P. 968
• Parties: CHARLES G. SCRAFFORD et al. v. I. M. GIBBONS
• Decision Date: 10 May 1890
• Court: Kansas Supreme Court

24 P. 968

44 Kan. 533

CHARLES G. SCRAFFORD et al. v. I. M. GIBBONS

Supreme Court of Kansas

May 10, 1890

Error from Nemaha District Court.

REPLEVIN. Judgment for plaintiff Gibbons, at the September term, 1887. The defendants, Scrafford and others, bring the case to this court. The material facts are stated in the opinion.

Judgment affirmed.

Wells & Wells, and W. C. Webb, for plaintiffs in error.

Hayden & Hayden, and W. D. Webb, for defendant in error.

GREEN C. All the Justices concurring.

OPINION

GREEN, C.:

This is an action in replevin by the plaintiff below, to recover possession of twenty-five head of cows, one sorrel pony, one large brown mule, one gray horse, and one bay horse, alleged to be worth, in the aggregate, $ 930. The plaintiff in the court below claimed possession of the property by virtue of a special ownership, under a chattel mortgage executed by one William Speedy, on the 2d day of February, 1887, and filed in the register of deeds' office on the 3d day of February of the same year. The property in question was levied upon by the sheriff of Nemaha county, under an execution issued out of a justice's court of said county, on a judgment against William Speedy and in favor of Sarah C. Coffman, and by her assigned to the plaintiffs in error. The execution was issued on the 25th day of February, 1887, and on March 1st following, the sheriff levied upon the property in controversy in this action as the property of William Speedy. The return of the sheriff shows that the property was found and seized by the sheriff while in possession of Speedy, in Harrison township, and was taken by him to the city of Seneca, in another township, and sold on the 16th day of March, 1887, for the sum of $ 512.45. The action was commenced against M. B. Lohmuller, the sheriff, but the plaintiffs in error were substituted for him, and the action proceeded against them. The trial in the court below resulted in a verdict and judgment for the plaintiff Mrs. Gibbons, for the sum of $ 949.71. A motion for a new trial was made by the defendants below, which was overruled and excepted to; and the plaintiffs in error now seek a reversal of the judgment, upon a number of grounds, but the principal one relied upon is the admission in evidence of the chattel mortgage, under which the plaintiff below claimed the property in question. The property in controversy is described in the mortgage as "forty milch cows and the increase, or calves, of said cows; one gray horse, about ten years old; one bay horse, about ten years old; one sorrel pony, about four years old; and one mule, about twelve years old." The mortgage provided that the property should remain in possession of Speedy until default be made in the payment of the debt and interest, or some part thereof, and that said property was not to be removed from Nemaha county. The residence of the parties is not given in the mortgage.

I. This mortgage is challenged upon a number of grounds, but the principal one relied upon is, that the description of the property intended to be pledged was so generally indefinite and uncertain that the instrument, when recorded, did not impart notice to the world. This court has upheld some very imperfect descriptions in chattel mortgages, and we readily see the justness of the rule, as it is almost impossible to set out in the instrument each and all the articles which may be embraced in it, with such precision that anyone, by an examination of the mortgage, without the aid of other evidence, could identify the property; hence the rule adopted and supported by a long array of authorities is, if a description will enable third persons, aided by inquiries which the instrument itself suggests, to identify the property, it is sufficient. (Jones, Ch. Mort., § 54; Mills v. Lumber Co., 26 Kan. 574.) Can this description be upheld under this rule? In the case of Mills v. Lumber Co., supra, this court says:

"We think, under the circumstances of the case, the description of the property in the chattel mortgage is sufficient. Of course the description in the mortgage is not sufficient to enable a third person without the aid of other facts than those contained in the mortgage to identify the horse; but that is not necessary. A description which will enable a third person, aided by inquiries, which the instrument itself suggests, to identify the property, is sufficient. Indeed, personal property can seldom be...