Thompson v. Anderson

• Decision Date: 17 May 1895
• Citation: 63 N.W. 355,94 Iowa 554
• Parties: THOMPSON v. ANDERSON.
• Court: Iowa Supreme Court

94 Iowa 554

63 N.W. 355

THOMPSON

v.ANDERSON.

Supreme Court of Iowa.

May 17, 1895.

Appeal from district court, Buena Vista county; Lot Thomas, Judge.

Action at law to recover damages for the alleged conversion of certain personal property upon which plaintiff had a landlord's and mortgage lien. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.C. A. Irwin and J. E. Buland, for appellant.

William Milchrist, F. H. Helsell, and H. F. Galpin, for appellee.

DEEMER, J.

This case is before us a second time. For former opinion, see 53 N. W. 418, 86 Iowa, 703. The plaintiff seeks to recover the value of 17 head of cattle, and 58 head of hogs, which he alleges the defendant converted to his own use. He avers that he has a landlord's lien thereon by virtue of a certain contract of lease made between himself and one N. H. Jacobs, and that he also has a chattel mortgage thereon made to secure a note of $300 and interest, executed by the said Jacobs. The defendant denied each and all of these claims, and pleaded a waiver of the liens, payments of the debts, insufficient description of the property in the mortgage, and that the property sought to be recovered was kept by Jacobs for sale upon the leased premises, and that defendant is an innocent purchaser thereof for value. Defendant also pleaded some other defenses, not necessary to mention.

1. The plaintiff demurred to those divisions of the answer, pleading the uncertainty and insufficiency of description, and that defendant was a good-faith purchaser for value of the stock, and some of the other defenses; and the ruling on this demurrer is complained of. The argument seems to be based upon a misapprehension of the record. The ruling, even if erroneous, seems to have been in defendant's favor, for the demurrer to that part of the answer pleading insufficiency of description in the mortgage was overruled.

2. Error is assigned upon the rulings of the court in admitting in evidence the mortgage sued on by plaintiff, and the certificate of the recorder thereon; and also in admitting another mortgage given by Jacobs to one Hay, upon the same property, with the certificate of the recorder indorsed. Complaint is also made of two instructions, which, in effect, hold that the description in plaintiff's mortgage is sufficient. The claim is made that the certificates of the recorder placed upon the back of the mortgages is not admissible to prove that they were recorded, and that in no event can they be used to prove that they were indexed as required by law. The record shows that each certificate was introduced and received in evidence without objection, and that thereafter the proper record of these mortgages was offered and read, no objection being interposed thereto. The instructions complained of cannot be reviewed, because not excepted to at the time, and no ground of objection is stated in the motion for a new trial. McClain's Code, §§ 3994-3996, and authorities cited. It does appear, however, that, at the conclusion of the plaintiff's evidence, defendant moved to strike the chattel mortgageunder which plaintiff claims, for the reason that the description therein is insufficient, and for the further reason that there was no competent evidence that the same had been recorded; and further moved to strike all evidence with reference to the hogs in controversy because they were not covered by the mortgage sued on, and for the further reason that it affirmatively appears that none of the hogs in suit were in existence at the time the mortgage was given, and the record of the mortgage imparted no notice. These motions were overruled, and defendant excepted. Conceding, then, that the question is properly before us as to whether the recording of a mortgage so as to give notice to third parties may be proved by the certificate of the recorder indorsed thereon, we think that where such certificate is authorized or required by statute, as it is in this state, the certificate is prima facie evidence that the mortgage was entered upon the entry or index book, and recorded as provided by law. In Webb on Record of Title it is said: “In a few states the certificate of the recording officer is by statute made conclusive evidence of the fact that the mortgage or conveyance has been duly filed for record. Where the statute has not given this effect to the certificate, it is usually held only prima facie evidence of those facts.” Section 272. The description of the property in plaintiff's mortgage was as follows: “All the horses, colts, cattle, hogs, and machinery described in the chattle mortgage given by me this day to L. E. Hay, and to which this mortgage is second, together with all increase of the above, until the obligation named below is fully paid.” The description in the Hay mortgage was, so far as material, as follows: “Thirty head of cows, mixed ages, and calves; 10 head of heifers, mixed color, coming two years in spring of 1888; 5 steers, mixed colors, coming two years spring 1888; 14 head of steers, mixed colors, coming 2 years spring 1888; 11 head of steers, coming 1 year old spring of 1888; 11 head of...