Mackey v. Jenkins , 62 Mo. App. 618 ( 1895 )

G-ill, J.

The interested parties in this controversy are the plaintiff, Mackey, and the Joplin National Bank. Mackey brought replevin for certain household goods, which the defendant Jenkins, as constable, had in his possession, by virtue of the levy of a writ of attachment in suit instituted by said Joplin National Bank against one Webster. The basis of plaintiff’s claim was a certain chattel mortgage executed by Webster, April 20, 1892, to secure a sum of money which he had, prior thereto, borrowed of Mackey. The substantial question is whether or not the property in controversy was covered by Mackey’s mortgage, wherein it was described as “all the following articles of personal property, situated in the county of Jasper and state of Missouri, to wit:” — naming then various articles of household effects, such as a bedstead, gas stove, sideboard, etc.,.and. then closing with, “all of said property is now in possession of J, M. Webster and Anna C. Webster, on bis premises, in said Joplin City, Jasper county, and state of Missouri.”

It stands admitted that at tbe time Webster1 made tbe foregoing mortgage to Mackey, the goods in controversy were not at Webster’s residence in Joplin, Missouri, but were stored in a warehouse in New York City, where they had been for a year or more; and that they were not brought out to Joplin until some months after the execution of Webster’s mortgage. They were, it seems, first taken to Webster’s Joplin residence, but subsequently stored in a wareroom at Joplin where they were attached by the Joplin National Bank, a creditor of Webster’s.

Under this state of facts, the trial court declared that plaintiff had no lien on or interest in the goods, as against the attaching creditors of Webster, gave judgment for defendant, and plaintiff appealed.

The judgment of the lower court was clearly for the right party and it will not be disturbed. The naming of certain household goods, describing them in a general way as a bedstead, stove, sideboard, etc., and as then in the residence of the mortgagor Webster at Joplin, Missouri, wasYot such a description as could include other goods then owned and stored by said mortgagor in a warehouse in the city and state of New York.

Plaintiff seems to rely on the fact, as testified to by' himself and the mortgagor,that they intended to include in the mortgage, not only the goods Webster had at the time in his house at Joplin, but those other goods which were then in store in New York. As was said by us in a parallel case: “It won’t do in such cases to give effect to such concealed intentions. The mortgage on its face must give notice to third parties of such intentions, or else great fraud might be accomplished.” * * It is true that parol evidence may be called in to explain the circumstances and thereby fit the description, as given in the mortgage, to certain property intended to be mortgaged; but it is not permitted the mortgagee to show, as against third parties, whose rights had attached, that his mortgage, naming property of a certain description, covered or applied to property of a dfferent description.” Mayer v. Keith, 55 Mo. App. 157; New Hampshire Cattle Co. v. Bilby, 37 Mo. App. 43.

The authorities are uniform “that the mortgage to be effectual must point out the subject-matter of it, so that a third person by its aid, together with the aid of such inquiries as the instrument itself suggests, may identify the property covered by it. The articles mortgaged must be of such nature and so situated as to be capable.of being specifically designated and identified by the written description.” Chandler v. West, 37 Mo. App. 635, and authorities cited; Campbell v. Allen, 38 Mo. App. 28.

There is no merit in the appeal and the judgment will be affirmed.

All concur.