Crow v. Zollars , 11 S.D. 203 ( 1898 )

Haney, J.

'This is an action of conversion against the sheriff for seizing and selling certain personal property under an execution upon which plaintiff claims a lien as mortgagee. The trial court held the mortgage to be invalid because of uncertainty in the description of the property,' refused to receive it in evidence, and directed a verdi(?t for defendant.

The mortgage was duly executed, and filed in the county where the property was situated and the parties resided when it was executed and at all times referred to herein. The property involved in this action is thus described: “Ten head of steers past two years old; eight head of heifers past two years old; fifteen head of steers and heifers mixed, one year.old past; fifteen calves coming one year old next spring; all of the above described stock branded L E G — L on shoulder, E on side, and G on hip.” It is recited in the mortgage that the mortgagor is a resident and ranchman of the county of Pennington, and stipulated therein that any attempt on the part of the mortgagor to remove any of the mortgaged property from that county shall entitle the mortgagee to take immediate possession and proceed to foreclose; such foreclosure proceedings to be conducted in Pennington county. When the introduction of the mortgage was refused, other evidence had been received tending to prove that the mortgage included all of the property of the kind described therein owned by the mortgagor when it was executed, and that the creditor under whose execution defendant levied had actual notice of its existence. Whether or not the description of the property in this mortgage is sufficient to impart record notice, we think the mortgage was valid as between the mortgagor and mortgagee, and valid as to third parties having actual notice. Clapp v. Trobridge (Iowa) 38 N. W. 411; Manufacturing Co. v. Griffith (Iowa) 39 N. W. 214; Cole v. Green (Iowa) 42 N. W. 304; Gammon v. Buel (Iowa) 53 N. W. 340. The court below érred in excluding the mortgage and in directing a verdict for defendant. The judgment is reversed and a new trial ordered.