Wade v. Strachan

• Decision Date: 05 October 1888
• Citation: 39 N.W. 582,71 Mich. 459
• Court: Michigan Supreme Court
• Parties: WADE v. STRACHAN.

39 N.W. 582

71 Mich. 459

WADE v. STRACHAN.

Supreme Court of Michigan

October 5, 1888

Appeal from circuit court, Ionia county; VERNON H. SMITH, Judge.

Action by Dell Wade against John D. Strachan for the conversion of certain wheat. Defendant appeals from a judgment for plaintiff.

CHAMPLIN, J.

On the 3d day of September, 1886, George W. Baldwin, Alida Baldwin and Leonard J. Baldwin executed a chattel mortgage to Dell Wade to secure a note which was given for a pre-existing indebtedness due on or before September 1, 1887. The mortgage was duly filed on September 4, 1886. The property mortgaged was described therein as follows: "Twenty acres of wheat now sown and growing on the ground, and still to be sown, on the (20) twenty acres, this present season of 1886, on the farm of George W. Baldwin, on section twelve, (12,) in the township of Orange, Ionia county, Michigan; which said goods chattels, and property at the date hereof are situate at the farm of George W. Baldwin, in the township of Orange, Ionia county, Michigan." George W. Baldwin, being indebted to John D. Strachan in the sum of $225, on the 22d day of September, 1886, gave to Strachan the joint and several note of himself and L. J Baldwin, due on or before 10 months after date, and to secure the payment thereof gave to Strachan a chattel mortgage executed by himself and L. J. Baldwin. This mortgage was duly filed. The property mortgaged was described as follows "Fifty (50) acres of wheat now growing on my farm, situate and being on the south half (1/2) of the southeast quarter (1/4) of section number twelve, (12,) in township number six (6) north, of range six (6) west, state of Michigan; the same being the farm on which I now reside with my family, and owned by me, in the township of Orange, in the county of Ionia." The whole number of acres of wheat sowed by Baldwin in 1886 was 35. There was a dispute between the testimony of the witnesses as to whether any wheat had been sown at all when the mortgage to the plaintiff was executed; some testifying that none at all had been sown, and others that one day's drilling had been done upon a certain field, which was variously estimated to contain from six to ten acres. The wheat was harvested by Baldwin in summer of 1887, and placed in the barn unthreshed. On September 5, 1887, Wade filed with the township clerk of the proper township the statutory affidavit for renewal of his mortgage. On the 16th day of September, 1887, defendant, claiming under his mortgage, took possession of the wheat in the barn, threshed and sold it, and applied the proceeds as so much paid on his mortgage, the amount realized not being sufficient to pay his mortgage in full. The declaration alleged that defendant converted to his own use the property of the plaintiff; being the wheat grown on the first 20 acres of land sown to wheat by George W. Baldwin on section 12, in the township of Orange, in the fall of 1886. It was said in Willey v. Snyder, 34 Mich. 60, that written descriptions of property are to be interpreted in the light of the facts known to and in the minds of the parties at the time; that a subsequent purchaser or mortgagee is supposed to acquire a knowledge of all the facts so far as may be needful to his protection, and he purchases in view of that knowledge; that descriptions alone do not identify of themselves,-they only furnish the means of identification. The mortgage described the property mortgaged as 20 acres of wheat "now sown and growing on the ground, and still to be sown, on the 20 acres, this present season," etc. It is a plain inference from this language that the intention of the parties was that the mortgage should attach to and cover the first 20 acres sown that fall. The testimony of the attorney who prepared the mortgage, and who was present at its execution, was to the effect that the parties so talked at the time it was executed, although the plaintiff testified that it did not attach to or cover any specified 20 acres of wheat; and he understood that he would have the right to select any 20 acres he chose growing on the section, and belonging to Mr. Baldwin. Had the plaintiff's testimony been the only evidence in the case, and bad it been competent for him to contradict and vary so plain an inference to be drawn from the language of the mortgage, it would clearly have been void for uncertainty. Montgomery v. Wight, 8 Mich. 143; Richardson v. Lumber Co., 40 Mich. 203. The court submitted it to the jury to find from the testimony whether any wheat had actually been sown by Mr. Baldwin on the section named in the mortgage at the time it was executed, and he instructed them that if none was sown at that time the plaintiff could not recover, and that in any event he could only recover for the wheat that was actually sown at the time the mortgage was executed, and he excluded from their consideration any wheat sown on the 20 acres after the mortgage was executed. The defendant's counsel submitted the following special question to the jury: "If any wheat was sown before the mortgage was given to Wade, was it more than six acres?" To which the jury answered: "There was more than six acres sown at the time the mortgage was given to Wade." They also found a general verdict for plaintiff.

The defendant insists that the mortgage to plaintiff is void as to him- First, because of uncertainty in the description of the property mortgaged; and, second, because the affidavit was not filed until after the expiration of a year from the time the mortgage was filed. As above intimated, we think the mortgage indicates by its terms very plainly that it was intended to cover the first 20 acres of wheat which Baldwin should sow on his farm on section 12. It also shows that the 20 acres had not all been sown at the time the mortgage was executed. A subsequent purchaser or incumbrancer would not know how many of the 20 acres had been sown at that time, but it would be his duty to inquire and ascertain the facts before purchasing. The uncertainty is not in the instrument; for that covers, without question, all the wheat then sown, but in applying the instrument to the subject-matter; as in all cases of this kind the identification must be made out by evidence dehors the instrument. The principles adverted to in Willey v. Snyder sustain the validity of this mortgage as against the first objection stated. Curtis v. Martz, 14 Mich. 510; Fordyce v. Neal, 40 Mich. 705; Austin v. French, 36 Mich. 199; Giddey v. Uhl, 27 Mich. 94.

The second objection is based upon the fact that plaintiff's mortgage was not renewed by the filing of the required affidavit within one year from the time the mortgage was filed. The mortgage was filed September 4th, and the renewal was not filed until the 5th of September of the year...