Williamson v. Payne

Whittle, L,

delivered the opinion of the court.

The facts of this case necessary to be stated are as follows: Appellants, who are creditors by deeds of trust of the Franklin Log & Lumber Company, together with their respective trustees, filed a bill in equity in the Circuit Court of Henry county for an injunction to restrain the grantors in said deeds, and ■other persons, from removing or in any manner interfering with the trust property. The bill further prays for the appointment of a receiver, and for the sale of the trust subject and the application of the proceeds to the payment of the debts secured.

At the December term, 1903, the court awarded an injunction and appointed a receiver in accordance with the prayer of the bill, and also directed the receiver to take possession of the trust property, sell the live stock at public auction, and to ■deposit the proceeds of sale in bank, subject to the order of the court.

At the same term the appellee, Cassell, recovered a judgment against the Franklin Log & Lumber Company for more than $300; and, having subsequently caused an execution to issue on the judgment, intervened in the suit in equity, and asserted priority of lien for the execution to the demands of appellants, upon the property in controversy.

From a decree in the cause sanctioning that contention, this appeal was allowed. The ground of decision of the Circuit Court was that, while the deeds in question were valid and binding between the parties, the property conveyed was not sufficiently described for tbe recordation of said deeds to affect third parties with constructive notice of the identity of the property conveyed.

Before considering the case in that aspect, it will be necessary to notice the contention of appellee that each of the amounts in controversy, exclusive of costs and interest accrued since the decree appealed from, is less in value or amount than $300, and that this court is consequently without jurisdiction to entertain the appeal.

The demand asserted by Williamson, with interest to the date of the decree, is $47 5; but it is said that the amount in controversy as to him is the original demand, less the sum directed to be paid him by the decree under review, which payment, it is alleged, reduces his debt to less than $300.

The property in dispute had been sold by the receiver under a former order of the court, and the decree appealed from directs him, out of the proceeds, to pay to the appellee, Cassell, the amount of his execution, including interest and costs, and his costs in this suit expended, and, after paying all other unpaid costs, to pay the residue to the appellant, Williamson. What that residue amounts to, the record does not disclose.

Generally spealdng, the value or amount in controversy must be made to appear affirmatively. If it cannot be ascertained, the appeal will be dismissed, and the burden is on appellant to establish the jurisdiction.” 2 Cyc. 555.

On the other hand, where the original demand is pecuniary and in excess of the jurisdictional amount, but is alleged by the appellee to have been reduced below tbat amount by payment, the onus rests upon him to make that fact appear. Fink Bros. & Co. v. Denny, 75 Va. 663; Filler v. Tyler, 91 Va. 458, 22 S. E. 235.

The debt of the appellant, Clement, amounts, with interest to the date of the decree, to $293, and his deed of trust also secures the expenses of executing the trust and drawing and recording the deed, which, it is conceded, raise luis demand beyond the juiisdictional amount. That these latter items are proper to be considered in arriving at the amount in controversy, see 2 Bar. Ch’y Pr. (2nd Ed.), p. 1208.

So that, if appellee’s apprehension of what constitutes the amount in controversy in this case is correct, the allegation that appellants’ respective demands are less than $300 is not sustained.

On the merits of the case, the decision of this court in Hardaway v. Jones, 100 Va. 481, 41 S. E. 957, is relied on to show the insufficiency of the description of the property to affect Cassell with constructive notice under the registry act.

In that case the deed of trust conveyed four mules, without further description. It did not state where or in whose possession they were, nor did it mention the residence of either the grantor, the trustee, or the beneficiary. The deed was acknowledged before a notary public in Scott county, and was put to record in that county. Within less than one month after the deed had been recorded, the grantor removed the mules to Wise county, and sold them for a valuable consideration to a purchaser residing in that county, who had no actual notice of the deed of trust. A few days thereafter the trustee demanded possession of the mules, and upon the refusal of the purchaser to surrender them, brought an action of detinue for their recovery, which resulted in a judgment in his favor. That judgment was reversed on appeal; this court, as remarked, holding that the' description of the property was inadequate to affect innocent third parties with constructive notice under section 2468 of the Code.

It must, however, be observed that there are many distinguishing features between that deed and the deeds drawn in question in this case.

The two deeds convey the same property, and, with the exception of- dates, amounts, trustees and beneficiaries, are practically identical in form. Both deeds show that the grantors resided in the county of Henry, and the trustees and beneficiaries in the town of Martinsville. The horses, mules, oxen, and wagons were conveyed in the same clause with a definitely described lumber plant, consisting of an engine, boiler, and sawmill, and would naturally have been regarded as parts of that outfit. The deeds further show that the property was to remain in the possession of the grantors until default was made in the payment of the debts secured. And, finally, it appears that the deeds were executed and duly recorded in thq clerk’s office of the County Court of Henry county before the recovery of Cassell’s judgment.

The doctrine of Hardaway v. Jones, supra, is that a deed of trust or mortgage conveying chattels, constitutes constructive notice to third persons, when the description in the deed or mortgage is such as would enable them to identify the property, aided by the inquiries which the deed or mortgage itself indicates and directs. And the court, in that case, at p. 485, observes : “In no case that we have seen has the recordation of a deed of trust been held to be constructive notice, which contained no description of the animals conveyed except their number, which did not state in whose possession the property was, or where it was located or might be found, or where any party to the deed resided.”

The converse of that proposition is also true, that the recordation of a deed -which furnishes a stranger with the obvious means of identifying the property, which these deeds afford, does give constructive notice.

The registry of the deeds in question affected Cassell with constructive notice of the following facts: That his debtors resided in the county of Henry; that they had conveyed their property to trustees, in trust, to secure the debts described in the deeds; that the trustees and creditors were all residents of the town of Martinsville; that the property constituted part of a sawmill outfit which belonged to his debtors; and that the whole of it was in that county, and in possession of the grantors.

The written description of personal property in mortgages, taken alone; rarely furnishes strangers adequate means of identifying the property, and information thus imparted must usually be supplemented or aided by extraneous inquiry.

That would have been equally true in this instance, even though the sex, color, and names of the live stock conveyed had been specified in the deeds. Hence the reasonableness of the rule that a deed is sufficiently definite when it enables a stranger to identify the property aided by proper inquiry such as the instrument itself indicates and directs.

The same is true with respect to the description of land in an action of ejectment. It is not required that the designation should be so certain that the officer will know from an inspection of the record of what he is to give possession; but, in executing the writ of possession, he may supplement the information obtained from the record with knowledge acquired from the plaintiff. Howdashell v. Krenning, ante p. 30, 48 S. E. 491.

In a leading case on the subject under consideration, Willey v. Snyder, 34 Mich. 60, Chief Justice Cooley says: “Written descriptions of property are to be interpreted in the light of the’ facts known to and in the minds of the parties at the time. They are not prepared for strangers, but for those they are to affect, the parties and their privies. A subsequent purchaser or mortgagor is supposed to acquire a knowledge of all the facts, so far as they may be needful to his protection, and he purchases in view of that knowledge. . . . Descriptions do not identify by themselves, they only furnish the means of identification. They give certain marks or characteristics, perhaps historical data or incidents, hy the aid of which we may single ont the thing intended from all others; not hy the description alone, bnt by that explained and applied.” See notes to Bassett v. Fisch (Iowa), 14 Am. St. Rep. 238, 41 N. W. 310, where many illustrations of the doctrine will be found.

In Estes v. Springer, 47 Mo. App. 90, it was held: “Notwithstanding the description in a chattel mortgage is faulty, in that it does not locate the property and does not state who is the owner, yet such fault is cured where other portions of the instrument show the residence of the mortgagor, and that the property is in his possession, and that it shall not be moved from the county in which the mortgagor’s residence is fixed, and that upon default it shall be sold in such county.”

Also in Shaffer v. Pickrell, 22 Kan. 619: “A chattel mortgage in which the description of the property is as follows: ‘Two hundred and fifty stock hogs owned by the said B. D.. Mott, in Pranklin county, Kansas,’ and which contains the provision that until default be made, or until such time as the mortgagees shall deem themselves insecure, the mortgagor, said Mott, is to continue in the peaceable possession of all the property, all of which, in consideration whereof, he engages shall be left in as good condition as the same now is, and taken care of at his own cost and expense, is not void for uncertainty.”'

See, to the same effect, Brown v. Holmes, 13 Kan. 492; Wells v. Willcox, 68 Ia. 708, 28 N. W. 29 ; Everett v. Brown, 64 Ia. 420, 20 N. W. 743; Bank v. Johnson, 79 Ia. 290, 44 N. W. 551; Eddy Fenner Co. v. Cardwell, 7 Minn. 225 (Gil. 166).

The rule fairly deducible from the authorities seems to be that, “where there is a description of the property mortgaged, and the description is true, and, by the aid of such description and the surrounding circumstances, the third person would, in the ordinary course of things, know the property was mortgaged, the description should be held sufficient. Mills v. Kansas Lumber Co., 26 Kan. 578.

Por these reasons the decree appealed from, to the extent to which it establishes appellee’s execution as a superior lien to appellants’ deeds of trust on the property involved in this litigation, is erroneous, and must be reversed and annulled, and the cause remanded to the Circuit Court of Henry county for further- proceedings to be had therein not in conflict with this opinion.

jReversed.