Yant v. Harvey

• Decision Date: 18 December 1880
• Citation: 7 N.W. 675,55 Iowa 421
• Parties: YANT v. HARVEY
• Court: Iowa Supreme Court

7 N.W. 675

55 Iowa 421

YANT v. HARVEY

Supreme Court of Iowa, Des Moines

December 18, 1880

Appeal from Polk Circuit Court.

ACTION for an injunction to prevent the defendant from taking possession of a certain horse. Each party holds a chattel mortgage upon the horse. The question presented is as to which is paramount. The plaintiff's mortgage was executed and recorded first, but the defendant claims that his mortgage is paramount, for the reason that he had no notice of the plaintiff's mortgage neither actual nor constructive. The court found for the defendant, and dismissed the plaintiff's petition, and she appeals.

REVERSED.

H. W Maxwell, for appellant.

Phillips & Conrad, for appellee.

OPINION

ROTHROCK, J.

I.

Other property was included in both of the mortgages, but this appeal involves the right to but one horse. The cause being an equitable one is triable anew in this court. Some question is made by the appellee as to whether all of the evidence is contained in the record. Counsel for appellee contend that the appellant's abstract does not show that the trial judge made a certificate to the evidence as required by statute. The abstract recites that it is an abstract of all the evidence, and that a certificate was made by the judge within the proper time. Besides, the appellee files an additional abstract of evidence. This is a sufficient showing that we have all of the evidence in the abstracts. It is not necessary to set out the certificate of the judge in the abstract. A recital that such certificate was made, and the date thereof, is sufficient.

II. Notwithstanding the plaintiff's mortgage was recorded at the time the defendant's mortgage was executed, the defendant insists that the record was insufficient to impart constructive notice to him, because the horse was improperly described in the plaintiff's mortgage, in respect to his color. In the plaintiff's mortgage he is described as a brown color. In the defendant's mortgage he is described as a black. One witness, and indeed the only witness who appears to have testified distinctly as to the color of the animal, says that "some would call him brown and some would call him black." The officer who was proceeding to foreclose the defendant's mortgage describes him as being black. But the plaintiffs' mortgage, as a further description, or rather means of identification of the property, describes the horse as being kept on the farm of the mortgagor in Beaver...