Rudolph v. National Live Stock Commission Co. , 76 Kan. 789 ( 1907 )

The opinion of the court was delivered by

Benson, J.:

The plaintiff in error specifies several rulings of the district court which he assigns as error. We find nothing in the record, however, upon which it is necessary to comment except the rulings of the court directing a verdict for the defendant in error, and in refusing to set aside the verdict and grant a new trial.

The mortgage was not executed until fifteen days after the fifty head of cattle were delivered to Rudolph. It is true that this was a renewal of an earlier mortgage, but there is no evidence that the first mortgage was ever filed, or that Rudolph had notice of it in any way. The cattle described in the mortgage, according to the recitals therein, were, when it was executed, on Thomas’s farm, four miles north of Odessa, in Butler county; but the cattle in question were not then in Butler county, but were in Cowley county, on Rudolph’s farm. There were sixty of the former and fifty of the latter. Otherwise the description in the mortgage applies to the cattle in the pasture as well as to those in the mortgage. Upon these facts, so shown by the evidence, we cannot say as a matter of law that Rudolph was chargeable with constructive notice of the mortgage, and there is no evidence that he had actual notice. He certainly had no notice of this mortgage when he took the cattle, for it had not then been made. The question remains, however, whether he had, or was chargeable with, notice of the mortgage after it was made and before he participated in the disposition of the property. In order to impart notice to Rudolph the mortgage should “contain either some hint which would have directed the attention of those reading it to some source of information beyond the words of the parties to it, or something which will enable third persons to identify the property, aided by inquiries which the mortgage indicates and directs, or a description which distinguishes the property from other similar articles.” (Golden and others v. Cockril, 1 Kan. 259 [syllabus], 1 Am. Dec. 510.)

“Generally, ... a description in a chattel mortgage which will enable a third person, aided by inquiries which the instrument itself suggests,, to identify the mortgaged property, is sufficient.” (Mills v. Kansas Lumber Co., 26 Kan. 574, syllabus.)

To the same effect see Tootle, Hanna & Co. v. Lyster, 26 Kan. 589. In King v. Aultman & Co., 24 Kan. 246, the description in the mortgage was as. follows: “ ‘One bay mare, one hind foot white, and white spot in face, branded “G,” 17 hands high, five years old,’ . . . in the possession of said mortgagors, in Clay county, Kansas.” (Page 247.) This description was correct except that the brand was “J,” and the mare was not 17 hands high, but was 15% hands high. The mare-was replevied by the mortgagees from a purchaser from the mortgagor, and the question was whether the purchaser was bound by the record of the mortgage. The trial judge in that case instructed the jury as follows :

“Mr. King was bound to take notice of the chattel mortgage and contents; that is, he is presumed to have-known at the time he purchased the mare just what the chattel mortgage contained. Under these circumstances, and the other circumstances of the case, if you believe that the defendant, by examining the mortgage, would háve known that the intention was to describe the mare in question, you must find for the plaintiffs; or if there was sufficient in the mortgage to cause the defendant King to make inquiries by which he might reasonably have discovered, that the intention was to mortgage the mare in question, then you must find for the plaintiffs. It is not necessary that there should be a perfect description of the mare, but it must be such as would cause a person of ordinary prudence to make inquiries which would lead to a discovery of the fact that the mare was intended to be mortgaged.” (Page 248.)

In Waggoner v. Oursler, 54 Kan. 141, 37 Pac. 973, the description in the mortgage was as follows: “45 head of three-year-old steers, 59 head of two-year-old steers, now being pastured on the Pottawatomie reserve by said party of the first part.” (Page 141.) Fifty head of the steers were afterward sold by the mortgagor ■ to a purchaser, who, having transferred them to another, was sued by the mortgagee for conversion. The question was whether the purchaser was chargeable with notice of the mortgage from its filing. Mr. Justice Johnston, speaking for the court, said:

‘‘The trial court correctly stated the rule that á description which will enable third parties, aided by inquiries which the instrument itself suggests, to identify the property is sufficient, and that a slight variance in the description would not invalidate the mortgage if from the entire description third persons, aided by inquiries which the instrument itself suggests, could identify the property.” (Page 143.)

In Dendy v. Bank, ante, p. 301, Mr. Justice Mason said:

“The description which the mortgage gave of the cattle was defective. They were described as kept at a particular ranch, whereas they were in' fact in another part of the county. Whether notwithstanding this partial misdescription the mortgage still gave sufficient information by which the cattle could with reasonable inquiry have been identified was a question for the determination of the jury.” (Page 303.)

The filing of the mortgage imparted notice of its contents. It contained a particular description, and a-recital that the cattle were all that Thomas owned of that description, and also a recital that the cattle were all on his farm in Butler. county. This presented a question of fact for the jury: whether the cattle in question, in Rudolph’s pasture, • could, with the description given in the mortgage, aided by such reasonable inquiries as.that instrument itself suggested, be fairly identified as part of the mortgaged property. If a person of ordinary prudence, reading such mortgage and making such inquiries, would so identify them, it Is sufficient; otherwise not.

The judgment is reversed and a new trial ordered.