Yant v. Harvey ( 1880 )

Rotiirook, J.

1. practice in courTPab-16 stiact. I. Other property was included in both of the mortgages, but this ajapeal involves the right to but one horse. The cause being an equitable one is triable anew in this court. Some question is made by 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.

2. mortgage : sufflojeneySoi description. 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 jj0rse 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 tbe horse as being kept on the farm of the mortgagor in Beaver township. The evidence is undisputed that tlio horse in question remained on said farm, and was kept there up to the time of the trial of the case in the court below. Now it was incumbent upon the plaintiff, in order to charge the defendant with constructive notice, to show that the description and means of identification -afforded by her mortgage were not so inexplicit that the defendant, in the exercise of reasonable care, at the time he took his mortgage should have failed to discover that the horse was included in her mortgage. As we are required to determine this question upon a preponderance of the evidence, we think that if the defendant, at the time he took his mortgage, had taken the description contained in the plaintiff’s mortgage, and gone to the farm named therein as the place where the mortgaged property was kept, and made inquiry, he would have learned that the horse in question was covered by plaintiff’s mortgage.

When the description in a chattel mortgage is correct as far as it goes, but fails fully to point out and identify the property intended to be conveyed, a subsequent purchaser or incumbrancer is bound to make every inquiry which the instrument itself could reasonably be deemed to suggest. Smith v. Mclean, 24 Iowa, 322.

But it is claimed that the description is not Correct as far as it is a description. We do not think that the description can be said to be incorrect where it is shown that some would call the animal brown, and some would call it black, if it be described by either color. The shade of color between a dark brown and a black horse is well known to be somewhat indistinct, and different persons might well describe the animal as one color or the other, as the principal witness in this case states. We think that, taking the evidence as to the color in connection with the statement of the place where the horse was kept, the defendant should be charged with constructive notice of the plaintiff’s mortgage, and that the Circuit -Court should have so found.

Be VERSED.