Tabor v. Sampson

• Decision Date: 16 May 1884
• Citation: 7 Colo. 426,4 P. 45
• Parties: TABOR, impleaded, etc., v. SAMPSON and others.
• Court: Colorado Supreme Court

4 P. 45

7 Colo. 426

TABOR, impleaded, etc., v. SAMPSON and others.

Supreme Court of Colorado

May 16, 1884

Error to district court of Chaffee county.

A. S. Weston, for plaintiff in error.

John L. Jerome, for defendants in error.

STONE J.

One Perley Wasson was the owner of a large number of horses mules, stage-coaches, and equipments employed in running several stage lines to and from Leadville, and in October 1880, for the express purpose of securing payment of a promissory note, of about $2,000, held by Tabor, the plaintiff in error, said Wasson executed a chattel mortgage to said Tabor of his stock in trade, comprising about seventy head of horses, three head of mules, a large number of stage-coaches, wagons, sleighs, buggies, harness, one barn furniture, and equipments, which chattel mortgage was duly acknowledged and recorded in the county of Lake. Wasson retained possession of the mortgaged property; and some time in December following some of the same property, which at the time was at Buena Vista, in the county of Chaffee, was attached at the suit of certain creditors of Wasson, and the attached property sold by the sheriff of Chaffee county. Sampson, one of the defendants in error, was a purchaser at this sale of one span of mules and eight head of horses. A few days after the sale Wasson took from the stable where they were kept at Buena Vista the mule and horses which had been purchased by Sampson, as aforesaid, and carried them away; whereupon Sampson replevied the same, and Tabor interfered therein, claiming the property under his chattel mortgage, the terms of which provided that he was authorized to take immediate possession of the mortgaged property in case the same should be removed from the county of Lake, or be attached by any person, or claimed by any third party. The controversy, therefore, is whether the right of possession of the last-mentioned property is in Tabor by virtue of the mortgage, or in Sampson by virtue of the sheriff's sale.

The case was tried in the court below by consent of parties without the intervention of a jury, and a finding and judgment rendered in favor of Sampson for possession of the property in controversy.

Several questions, presented by the assignment of errors, are discussed by counsel in the briefs filed, but the only one we deem it necessary to pass upon, in view of the issues made by the plaintiffs below, relates to the sufficiency of the mortgage as against the rights of Sampson as purchaser at the judicial sale.

We think the mortgage insufficient to defeat the rights of the purchaser, for two reasons: uncertainty in description of the property, and the non-recording of such mortgage in the county where the property in question was and in the possession of the mortgagor at the time it was attached. The only description of mules in the mortgage was '2 mules bays; 1 mule, dun,' while some of the horses were described singly and in pairs, by name only, as, for instance, '2 horses, Dock and Gertie; 2 horses, Monkey and Trickle; 2 horses, Bill and Maggie; * * * 1 horse, Black Baby; 1, Keno; 1 horse, Bill; 1 horse, Poney; 1 horse, Frank,' etc.; but most of the...