Snyder v. Bridewell

CONCURRING OPINION. The mortgage executed by Nashville Lumber Company to Lesser-Goldman Cotton Company conveyed by definite and accurate descriptions, according to government plats, a large number of tracts of land in Howard and other counties, and the list of properties concluded with the language copied in the opinion of the majority, and, prior to the foreclosure of the Nashville Lumber Company, conveyed the lands involved in this controversy to another concern, describing the tracts accurately by reference to government plats. The tract in controversy was, at the time of the execution of the mortgage, unoccupied, and there was no reference in the mortgage to occupancy. The question involved in the present discussion is whether or not such a description in a mortgage is sufficiently definite to constitute constructive notice to third persons. There is no question presented as to whether the description is sufficient to carry title as between the parties, or even as against third parties with actual notice. The effect of our own decisions is, I think, correctly stated in the opinion of the majority to be that there must be a particular and certain description in the deed, or the deed "must make reference to something tangible by which the land can be located." Reference to occupancy or to any other tangible object would be sufficient, but I do not believe that it is sound to say that mere reference to ownership is sufficient to put third parties upon notice. There are, undoubtedly, many authorities which appear to sustain the views of the majority, but an examination of the cases discloses that many of them make no distinction between a mortgage deed, as in the present case, and an executory contract, as in the case of Higgins v. Higgins 121 Cal. 489, cited by the majority, or statute creating a lien, as in the case of Wilson v. Boyce,92 U.S. 325. A distinction in those phases of the question does, I think, exist. Where a statute creates a lien on all property of a corporation, as was the case in Wilson v. Boyce, supra, all persons must take constructive notice of the application of the statute; and, in the case of an executory contract, all persons with actual notice are bound by it. There are, however, cases which go to the same extremes as do the majority of this court now, but there is authority to the contrary. In the case of Herman v. Deming, 44 Conn. 124, the court expressed the view which seems to be reasonable and sound. See also the case of Green v. Witherspoon, 37 La. Ann. 751. In both of the cases just cited the description was substantially the same as that employed in the present instance, and in both cases it was held that it was ineffectual as against third parties.

A description of this kind is too indefinite to constitute constructive notice, for the obvious reason that it is not practicable for a third person to make the notice real so as to obtain actual information, of the conveyance. We know that, in the customary method of preparing an abstract of title, such a description would not appear on a set of abstract books so as to apprise the abstracter of the information as to all the tracts of land to which it applied, and, in making an abstract for a given tract of land, no information would be afforded as to such conveyance. To hold that such a description constitutes constructive notice may therefore work a hardship. In the present instance a third person would be compelled to search the records in all of the counties where the mortgage was recorded to ascertain what lands were owned by the mortgagor.

I concur in the judgment on other grounds, but I do not agree with the majority on this point.

Justice SMITH concurs in the views here expressed.