Sonka v. Yonkers

• Court: Iowa Supreme Court
• Writing for the Court: PRESTON, J.
• Citation: Sonka v. Yonkers, 191 Iowa 599, 180 N.W. 876 (Iowa 1921)
• Decision Date: 11 January 1921
• Docket Number: 33272
• Parties: FRANK SONKA, Appellant, v. PETER YONKERS, Appellee

180 N.W. 876

191 Iowa 599

FRANK SONKA, Appellant, v. PETER YONKERS, Appellee

No. 33272

Supreme Court of Iowa, Des Moines

January 11, 1921

REHEARING DENIED MAY 10, 1921.

Appeal from Linn District Court.--MILO P. SMITH, Judge.

ACTION in replevin to recover possession of certain hay. The hay was sold by plaintiff after the replevin, and defendant, claiming to own one half of the hay so sold, in his answer asked judgment against plaintiff therefor. Trial to a jury, and at the conclusion of plaintiff's evidence, the trial court sustained defendant's motion for a directed verdict in his favor; and, defendant electing to take a money judgment the court directed the jury to return a verdict accordingly and to fix the value of defendant's half of the hay at $ 160, this being, as appellee contends, the lowest valuation put upon the hay by any of the witnesses. Judgment was entered in favor of the defendant upon the verdict, and the plaintiff appeals.

Affirmed.

Dawley & Jordan, for appellant.

F. L. Anderson, for appellee.

PRESTON, J. EVANS, C. J., WEAVER and DE GRAFF, JJ., concur.

OPINION

PRESTON, J.

One Chick was the equitable owner of some 40 acres of land, which includes the land hereinafter described, which defendant claims he had leased from Chick, from April 1, 1918. During the season of 1918, defendant cut and put up all the hay--the two stacks of hay in controversy. The hay was on the land at the time of the replevin. The principal contention between the parties seems to be as to whether a chattel mortgage executed by Chick, December 28, 1917, to this plaintiff, contains a sufficiently definite description of the crop of hay for the year 1918, as against defendant's rights, under a written lease of the land from Chick, dated April 1, 1918, the hay, as stated, having been put up by defendant thereafter. The mortgage was recorded, but it does not appear that defendant had any actual notice. We take it, though it does not clearly appear, that the trial court directed a verdict for the defendant upon the theory that plaintiff's mortgage was invalid, and that the description therein was insufficient to impart notice to the defendant. The clause of the mortgage, so far as it is material, reads:

"The crop from twenty-five acres of the following described property, which is planted to rye, and the crop from eleven acres of the following described property, which is planted to hay."

The 40 acres is correctly described, but the mortgage does not state the year in which the crop is to be raised. The lease provides, among other things, that Chick agrees to furnish 14 acres, or thereabouts, to be put in oats by defendant; that Chick is to furnish $ 20 to pay for one half the seed, and is also to pay one half the threshing bill; that defendant is to furnish the other half of the seed, and to plant, harvest, and thresh the crop in seasonable time, defendant to receive one half the crop for his labors. Chick agrees to give defendant plenty of time to remove his share from the place. Defendant further agrees to cut and put up what hay there is on the place, and is to receive one half of the crop for his labor. It appears that, previous to the date of the mortgage, Chick had put in some seed on the land which had grown up into grass, and had once been harvested to hay. Appellant's contention is that the same field had been replanted, in the process of nature, to timothy and clover, and that such was the condition when the chattel mortgage was given.

1. Appellant cites a large number of cases to the proposition, as he states it, that, where a crop actually in the ground, and to be harvested in the future, is mortgaged, and the mortgage accurately describing it is duly recorded, the rights of the holder of such a mortgage are superior to any rights thereafter acquired by a third person from the mortgagee. We do not understand that defendant is claiming any rights from the mortgagee. He is claiming from the mortgagor, Chick. Perhaps this is not very material, as to the question of description in the mortgage as to the year. Among the cases cited is Pennington v. Jones, 57 Iowa 37. We find no such case at the citation, but assume that reference is made to 57 Iowa 37. It is said by appellant that this case was reversed in Luce v. Moorehead, 73 Iowa 498, 35 N.W. 598. We do not think it was. The Pennington case holds that, before a mortgage on crops to be sown or planted can be regarded as valid as against third persons, the year or term in which the crops are to be grown must be stated at least, and the court said that, under the form of the mortgage in that case, they did not determine whether it would be a sufficient description, even if the year was given. The holding was, however, that the mortgage was void because the year was not given.

In the Luce case, where the description was "crops growing and to be grown," it was held that, though the year was not given in the mortgage, and though the description was invalid as to crops to be grown, it was good as to crops actually growing at the time of the execution of the mortgage. In that case, the property was corn, and necessarily would apply to the crop of corn growing in the same year it was planted and harvested. Corn is not planted in the year before it is grown, nor harvested the year after. The property in controversy in this case is hay, and it is thought by appellant that it was planted and growing December 28, 1917, when the mortgage was given. In a sense, possibly, grass is growing all the time,--that is, in December, the roots, at least, would be in the ground; but we think it could not be said that, because of this, the instant case would be brought within the rule of the Luce case. Possibly, if the mortgage was dated in the spring or summer of 1917, it could be said that the crop of grass, later in the same year, made into hay, would cover the crop of 1917. In other words, that might be a sufficient description of the year. But it seems to us that it could not be said that a mortgage executed in December, 1917, would cover the crop of grass or hay grown and harvested in 1918, under the theory of the Luce case that the crop of 1918 was growing at the time of the execution of the mortgage. True, the crop in question, claimed by plaintiff, was grown and harvested in 1918, but we think that crop was not covered by the description in the mortgage as a growing crop in December, 1917. We shall not stop to review, at any length, the other cases cited by appellant, but content ourselves with a brief reference thereto. The description in each case varies. Eggert & Thoren v. White, 59 Iowa 464, 13 N.W. 426, holds that a mortgage describing the crops raised on certain land, without giving the year, was insufficient to put defendants on inquiry as to crops, none of which were raised, and only five acres of which were sown, at the time of the execution of the mortgage, and that the description could not be aided by parol testimony. Held that plaintiff could not recover, under such a mortgage. The crop in that case was flax and wheat, and other grain or produce. The Pennington case, supra, was approved. It was also held in that case that one who seeks, by virtue of a chattel mortgage, to recover possession of property which he claims is covered by it, must rely on the strength of his own title, and not on the weakness of the title of his adversary. Under such a holding, the plaintiff in this case must rely upon the strength of his title. Cray v. Currier, 62 Iowa 535, 17 N.W. 760, Peterson v. Foli, 67 Iowa 402, 25 N.W. 677, and Wheeler v. Becker, 68 Iowa 723, 28 N.W. 40, have little, if any, bearing on the question now under consideration. In the first of these cases, a word had been omitted which the court was not willing to supply. In the second case, the question was whether a horse could be identified by the description in the mortgage, and it was held that, under the evidence, this was a question for the jury. In the Wheeler case, the mortgage described a horse, which description was held sufficient, in connection with a provision that the property was to remain in the hands of the mortgagor. In the instant case, the hay cut by the defendant was not in the possession of the mortgagor, Chick, and it never was. Indeed, one of the contentions of appellee is that neither Chick nor plaintiff ever acquired the property. Barr v. Cannon & Gunn, 69 Iowa 20, 28 N.W. 413, is against appellant's contention, and follows the Eggert and Pennington cases. In Norris v. Hix, 74 Iowa 524, 525, 38 N.W. 395, and Johnson v. Rider, 84 Iowa 50, 50 N.W. 36, the mortgages stated the year in which the crops were grown. In King v. Howell, 94 Iowa 208, 62 N.W. 738, the defect in the mortgage was in the number of the township, but the mortgage covered all hay in stack belonging to the mortgagor on certain described property, and a mower owned and kept by him. It was held that, since he had property answering such description in Township 92, though he did not have in 91, it was sufficient to enable third persons, aided by the inquiries suggested by the instruments, to identify said property, despite the erroneous statement of the township. No question as to the year. Hopkins Fine Stock Co. v. Reid, 106 Iowa 78, 75 N.W. 656, involved increase of live stock. We do not see that the case of Strawhacker v. Ives & Sons, 114 Iowa 661, 87 N.W. 669, has any bearing on the question now before us. In Farmers' & Merchants' Bank v. Stockdale, 121 Iowa 748, 96 N.W. 732, the description in the mortgage was too indefinite, and the recording of the same did not impart constructive notice to subsequent mortgagees. No question in that case as to the year in which crops were to be raised. In Ashley v. Keenan, 157 Iowa 1, 137...