Pitluk & Meyer v. Butler , 1913 Tex. App. LEXIS 43 ( 1913 )

It is the contention of appellants that they were also entitled, under the evidence, to have a foreclosure of their chattel mortgage lien on the mule colt against all the parties, and that it was error to have denied it. The identity of the property purchased being conclusively shown, the question remaining between the parties was whether Lydie and Alexander took the property subject to the chattel mortgage, or whether the lien was void against them on the ground that the property was not sufficiently described; and the question becomes one purely of law in this particular case, for the reason that it depends upon the legal effect to be given to the facts presented. The chattel mortgage describes the property as "one black mare mule colt eight months old," and states facts of the definite ownership and sufficiently of the situs of the property. And in connection with the instrument the fact was conclusively proven that the mortgagor did not own or have in his possession, at the time of the mortgage or the purchase, any other mule colt than the one covered by the mortgage. It is the quite familiar rule that as against third persons the mortgage must point out the subject-matter, so that the third person may identify the property covered by the aid of such inquiries as the instrument itself suggests. That is required because notice flowing from matters of record cannot be more extensive than the facts stated or referred to. And by limiting the inquiry that would have been required of a third person to the particular description given in the mortgage here, identity of the particular mule colt in suit was fixed and certain. There is the situs of the mule colt covered by the mortgage sufficiently indicated by the recital that the mortgagor is the owner, has possession, and that he resides at a stated place. And the giving of the age, sex, and color is a description reasonably particular, and there is only a possibility of describing with greater detail. And there is the fact of nonexistence of other property of the kind held or owned by the mortgagor to which the terms of the mortgage could apply. All of these are elements that should be considered in determining the sufficiency of the description of the mule colt covered by the chattel mortgage to affect with notice. We, therefore, conclude that Lydie and Alexander should be held to have purchased the mule colt subject to the mortgage. Johnson v. Brown, 65 S.W. 485; Boykin v. Rosenfield, 69 Tex. 117,9 S.W. 318; Ames Iron Works v. Chinn, 15 Tex. Civ. App. 88, 38 S.W. 247; Garrett v. Josey, 44 Tex. Civ. App. 1, 97 S.W. 139; Scaling v. Bank,39 Tex. Civ. App. 154, 87 S.W. 716; Lightle v. Castleman, 52 Ark. 278,12 S.W. 564; Shreck v. Spain, 30 Neb. 887, 47 N.W. 419.

It follows that the judgment in this case should be reformed so as to allow a foreclosure of the chattel mortgage lien on the mule colt in favor of appellants against all the appellees, and it is accordingly done; and as so reformed the judgment is affirmed.

The costs of appeal will be taxed against appellees Lydie and Alexander. And all the costs of the court below, so far as it affects the proceeding in foreclosure, will be taxed severally against the appellees as incurred by them and as well by appellants, and otherwise against appellee Butler.