Elder v. Miller , 60 Me. 118 ( 1872 )

Appleton, C. J.

This is an action of trover for two horses. The plaintiffs claim under a mortgage from Jordan & Rice, dated Dec. 3, 1870, and duly recorded.

The defendant claims as a purchaser of the horses in controversy subsequently to the recording of the mortgage.

Jordan & Rice, at the time of giving the mortgage to the plaintiff, were keeping a livery stable. The mortgagors describe the stable, the property mortgaged, as carriages, phaetons, eight horses, etc., ‘ the said property being the same now in said building or stable.’

The only objection taken to the plaintiff’s right to recover, is that the description of the horses is not sufficiently definite. But the mortgagors warrant their title to the property mortgaged. They describe the building in which it then was. The fact that other individuals were boarding their horses at the same stable does not affect the plaintiff’s right to recover. Parol evidence is necessarily admitted to show the identity of the property mortgaged. In Brook v. Aldrich, 17 N. H. 443, the mortgage was of two horses belonging to the mortgagor, and the description was held sufficient. In Harding v. Coburn, 12 Met. 333, a mortgage of ‘ all and singular, the stock, tools, and chattels belonging ’ to the mortgagor, ‘in and about the wheelwright’s shop occupied’ by him, was held valid. In discussing the necessity of resorting to parol evidence, to identify the mortgaged property, Dewey, J., says, ‘ take the case of live stock on a farm; the general description would be ‘ all my stock on my farm.’ The particulars are, ‘ ten cows, two yoke of oxen,’ etc.; but in both you must rely on other sources than the mortgage for the identity of the property mortgaged.’

The cases are numerous in this State in which descriptions like that in the mortgage under consideration have been sustained. Chapin v. Crane, 40 Maine, 561; Skowhegan Bank v. Farrar, 46 Maine, 293.

The evidence to show that the horses in controversy were owned by the mortgagors at the time of the mortgage, and were then in the stable, and embraced within the mortgage, was properly received. . Exceptions overruled.

Kent, Walton, Dickerson, and Danforth, JJ., concurred.