Ormsby Bros. v. Nolan

PoTnROOK, J.

i. chatted senption. I. The property in controversy was described in the mortgage as follows: “ One open buggy, with fills new, made by Taylor Brothers, Emmetsburg, and bought of them; and one sulky, new, made by Taylor Brothers, Emmetsburg, Iowa.” There was no evidence that the defendants had any actual notice of the mortgage when the property ivas levied upon, and the court below held that the description of the property in the mortgage was too indefinite to charge the defendants ' with constructive notice, and that, as between these parties, extrinsic evidence was not admissible to identify the property as that intended by the parties to the mortgage to be. included therein.

Appellants insist that these rulings of the court were erroneous. A number of cases have been determined by this court involving the question as to the sufficiency of the description of property in chattel mortgages to charge third persons with constructive notice of the rights of the mortgagee. See Smith v. McLean, 24 Iowa, 331; Ivins v. Hines, 45 Id., 73; Muir v. Blake, 57 Id., 665; Hayes v. Wilcox, 61 Id., 732; Everett v. Brown, 64 Id., 420.

An examination of these cases leaves no doubt that the ruling of the court below was correct. The description of the property as contained in the mortgage must direct the mind to evidence whereby" the precise tiling conveyed may be ascertained, and if thereby absolute certainty may be attained, the instrument is valid; otherwise it is void as to third parties for uncertainty. Of course, no two of the above cited cases are exactly alike in the description, of the property in the mortgage; but it is quite apparent that the mortgage involved in this case is invalid under the rule above stated. The description is so much like that in the case of Hayes v. Wilcox, supra, which was held to be insufficient, that counsel for appellant intimate that that case should be overruled and this mortgage sustained. We know no reason for so doing, and we think that the Hayes’ Case is not inconsistent with the other cited cases.

2. —: parol lo identify property. The ruling of the court excluding the extrinsic evidence was correct. It is only when the mortgage suggests inquiry, which will result in its identification, that parol . _ . , , . , evidence is competent to point out and identity the property.. Rowley v. Bartholomew 37 Iowa, 374; Ivins v. Hines, 45 Id., 73.

3. appeal to courtm?urisamouStm controversy. II. Eor some reason the court below thought it necessary to certify this cause to this court under section 3173 of the Code, which limits the right of appeal to cases when the amount in controversy, “as shown by the pleadings, does not exceed one hundred doljai.s^> un}ess foy a certificate from the trial j udge. The amount in controversy, as shown by the pleadings in this case, does exceed one hundred dollars. This is apparent from the averments of the petition. It is there claimed that the property is of the value of $95, and that the extent of the plaintiff’s interest therein is $86.50, which is the amount of the debt secured by the mortgage; and il is charged that the plaintiffs have been damaged in the sum of $25 by the wrongful detention of the property. They demand a judgment for the delivering of the property, and $25 damages. Nothing can he plainer tban that the amounl in controversy-exceeds $100. It is true, no evidence of d images was introduced. But that is immaterial. The amount in controversy is to be ascertained from the pleadings alone.

4. replevin: ínelit: error witliotft prejudice. The court gave the following instruction to the jury: “ In regard to the issues in the case, you are told that the plaintiffs have failed to sustain their case by sufficient evidence. You will therefore return a verdict for the defendants for the possession of the property in controversy, but yoib must determine from the evidence the value of the property, and this is the only question for you to consider.” The jury fixed the- value of the property at $100, and the court rendered a judgment against the plaintiff for the return of the property; and in default of making the return, or in case the same, cannot be found, then that defendants recover $100 in money, and costs. It is claimed that this judgment is erroneous, because the proof shows that the amount due on the execution is much less than $100. It is true, the court should have directed the jury to find the value of the defendants’ interest in the property. This value was the amount due on the execution, and the costs thereon. But we think the plaintiffs have no cause of complaint. It does not appear that they made any objection to the above instructions on the ground that the jury should have been directed to find the value of defendants’ interest; and they make no such objection in argument now; They object to the judgment. The judgment gives the plaintiffs the- option to return the property or pay the value and costs. This they may yet perform. They may return the property. If they do so, and pay the costs, the judgment will be satisfied. It maybe the defendants were entitled to elect whether they would take the property or the money judgment; but they have not appealed, and do not complain of the judgment. We do not think the plaintiffs are in a position to complain of the judgment, so long as they may discharge the same by return of the property.

Aeeirmed.