State Bank of Dayton v. Felt

• Decision Date: 24 October 1896
• Citation: 68 N.W. 818,99 Iowa 532
• Parties: THE STATE BANK OF DAYTON, Appellant, v. C. A. FELT, et al
• Court: Iowa Supreme Court

68 N.W. 818

99 Iowa 532

THE STATE BANK OF DAYTON, Appellant, v. C. A. FELT, et al

Supreme Court of Iowa, Des Moines

October 24, 1896

Appeal from Hamilton District Court.--HON. N. B. HYATT, Judge.

ACTION for the recovery of specific personal property. Judgment for the defendant, and the plaintiff appeals.

Affirmed.

Wesley Martin for appellant.

A. N Boeye for appellees.

OPINION

GRANGER, J.

On the eighteenth day of December, 1888, W. A. East made to the plaintiff bank a mortgage on certain personal property which is the subject of this suit. On the eighteenth day of March 1889, and again on the eighteenth day of June, 1889, said East made a mortgage to Mrs. Felt, defendant, and the same property is included in these mortgages together, and Mrs Felt took possession of the property September 1, 1891. This action is to recover the possession of the property, by virtue of the mortgage to plaintiff, which was filed for record on the twentieth day of December, 1888.

The first question we are to consider is as to the sufficiency of the description in plaintiff's mortgage, which the district court held insufficient, and instructed the jury to return a verdict for the defendant. The description is as follows: "Know all men by these presents, that I. W. A East, of the county of Hamilton and state of Iowa in consideration of the sum of six hundred and fifty dollars to me in hand, paid by the State Bank of Dayton, of Webster county, Iowa party of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his heirs, assigns, etc., the following goods and chattels, to-wit: One brown mare, nine years old in spring; one sorrel horse, seven years old in spring; two black two year old colts, white spot in forehead; one mare and one gelding; three red cows, about eight years old; ten cows, about four years old (described as follows, to-wit: Three white with red ears, one white with red head, two all white, one red with white face, one red, one spotted, and one roan); three yearling heifers (one white and two red); one red yearling steer; fourteen calves (two steers and twelve heifers); twenty shoats (seven barrows and thirteen sows); and the increase of all the above-described stock,-to have and to hold the same forever. And I, the said party of the first part, will forever warrant and defend the same against all persons whomsoever." We have included some more than the mere description because appellant claims that importance is to be attached to the other language. We have no doubt of the correctness of the court's holding. This court has never held such a description good. The rule that a mortgage is sufficient if it will enable third persons, aided by inquiries which the instrument indicates and directs, to identify the property, is well understood, and it is recognized by appellant in argument. Importance is attached to the provisions in the mortgage as to preserving the property from waste, to care properly for the same, or attempting to remove it from Hamilton county, and the covenant to warrant and defend it against the claims of all persons; and it is thought they show ownership by the mortgagor. These, or some of them, are usual covenants under which such mortgages have been construed as to sufficiency of description. The mortgage is destitute of the means of identification, such as ownership, possession, and location, on some of which reliance has usually been placed as indicating sufficiency of description. It does not show who owned the property in terms, in whose possession it was when the...