Harding v. Coburn

Dewey, J.

The first point, arising upon the mortgage under which the plaintiff claims to hold the property in controversy, is as to the validity of a general description of the property mortgaged ; such as “ all my tools and implements in my shop in B.,” or other equally general words of description. It is insisted by the defendant, that such general description has no legal force and effect, and that nothing short of a specific description of the various articles mortgaged can avail a mortgagee relying upon a recorded mortgage, and the possession remaining with the mortgagor. No direct authorities are cited to establish this position, although some cases are referred to, giving some countenance to such doctrine. But the argument principally pressed .upon our consideration was, that of the importance of such construction of the law, as the only one that would give effectual notice to all concerned of what was actually intended to be conveyed by the mortgage.

We all feel the force of this argument, and the great importance of requiring as much certainty, in contracts of this nature, as the case will reasonably admit. If it were practicable to set forth, on the face of the mortgage, with entire precision, all the specific articles embraced in it, in such a manner that the inspection of the mortgage, without reference to any other evidence or source of information, would enable me to ascertain with certainty the property mortgaged, it would be highly important and useful "that such description of the property should be required to be given, in every case But a little consideration has satisfied us, and must satisfy any one, that in a large portion of the cases, resort must be had to parol evidence to ascertain the identity of the property mortgaged. Most personal property must, from the nature of the case, be described in such general terms as to leave no other alternative, but to resort to parol evidence to identify it. Apparently it seems a more bald description, to say “ all my household furniture,” than to enumerate the articles, and describe them as “two dozen of chairs, five tables,” &c. j but in reality the latter will require extrinsic evidence to identify the property, as much as the former would. Or take the case of a mortgage of live stock on a farm ; the general description would be, “all my stock on my farm.” The particulars are, “ten cows, two yoke of oxen,” &c.; but in both you must rely upon other sources than the mortgage for the identity of the property mortgaged.

There is nothing, in the statute itself, (Rev. Sts. c. 74,) prescribing the form of mortgages of personal property. The statute deals with them as instruments known and recognized by the common law, and only provides as to the possession of the property being retained by the mortgagee, or that the mortgage be recorded in the proper office. The statute leaves in full force a mortgage at common law, if the mortgagee takes and continues the possession in himself. Such mortgages, with general descriptions of the articles, have ever been considered good.

Several cases have been before us, which were open to the objection now raised; and so far, therefore, as a silent acquiescence in such cases, by counsel, would furnish any inference that the objection was untenable, the plaintiff is entitled to the benefit of it. Perhaps no very strong inference should be drawn from that circumstance. But the case of Winslow v. Merchants’ Ins. Co. 4 Met. 306, seems to have raised the precise question we are considering. It was a mortgage of. “ all and singular the goods, wares, stock, iron, tools, manufactured articles, and property of every description, being situate in or about the shop or building now occupied by me in Hawley Street.” The mortgage, in that ease, was not only liable to the objection that it was general in its description of the property, but also to the further objection, that it was imperfect and incomplete, and contemplated something further to be done ; inasmuch as it also provided that “ a particular schedule of the property shall be annexed hereto, as soon as conveniently may be.” No such schedule, however, was annexed; but the court held the general description of the property sufficient to entitle the mortgagee to hold the same.

Nor will the enumeration of certain specific articles prevent others of like kind, if included in the general description, from passing under the mortgage.

The next question raised relates to the ruling as to the property in certain articles that had undergone a change by manufacture, after the date of the mortgage, and before' the attachment by the defendant. The ruling upon this point was, we think, sufficiently favorable to the defendant; perhaps too much so in reference to the effect of subsequent additions of labor and material in divesting the mortgagee of his right of property. We understand this instruction to have been, that the article must remain substantially the same, in order to preserve the property in the mortgagee ■ and if such identity was continued, additions not making an important part of its whole present value would not divest the mortgagee of his interest.

The defendant further objects to the sufficiency of the demand of the plaintiff, and his statement of the amount due on the mortgage. To sustain the objection, he relies upon the case of Moriarty v. Lovejoy, 23 Pick. 321. We think the cases distinguishable, and particularly in this; that in the case cited, the statement of the mortgagee did not allege that it was a mortgage of the property then attached, and in the hands of the officer; which latter averment is substantially found in the present statement, and to the extent of the property then actually attached, and in the defendant’s possession ; and this is a sufficient demand.

It is next objected, that the ruling of the court was erroneous, upon the question of a supposed variance between the plaintiff’s statement of the amount of his claims under the mortgage, and the actual sum which, upon a just and true account, the jury would find due, upon the evidence in the case. The question before us is not as to the weight of the evidence upon this point, or whether the jury found a verdict against the weight of the evidence ; but whether the verdict was found under proper instructions from the court.

If the amount stated might, upon the evidence, have been found a just and true account of the liability arising under the second mortgage, then the finding was well authorized. We understand the ruling of the court to have required the jury, before returning a verdict for the plaintiff, to find that there was no material misstatement of the amount due from Rowell to the plaintiff; and this implies that it was not overstated. If it were so, to any amount proper to be regarded in a court of justice, the defendant, under this ruling, must have had a verdict in his favor. The instruction seems sufficiently guarded. This subject has been before us recently, in the case of Rowley v. Rice, 10 Met. 7, to which we refer. Applying the principles of that case to the present, if there were an overstatement of the amount due to the plaintiff, in the demand made by him, yet the whole facts would present a case where, under that decision, no damage had accrued to the defendant by the overstatement; as he would have had no inducement to redeem the property, if the amount due had been stated with the most scrupulous accuracy ; the property in controversy being of much less value than the debt secured by the mortgage, supposing the amount had been truly stated.

It is further objected, that the plaintiff cannot maintain the action, although he may have been the owner of sundry articles taken by the defendant by virtue of a writ of attachment against the mortgagor; inasmuch as the articles now claimed by the plaintiff were found in possession of the debtor and intermingled with various other articles that were not mortgaged, and which were properly attached as ths property of the debtor, and the plaintiff not having pointed out the precise articles claimed by him. To a certain extent, the principle here relied upon by the defendant has been sanctioned by the court. The leading case was Bond v. Ward, 7 Mass. 123. This was followed by Sawyer v. Merrill, 6 Pick. 478, and Shumway v. Rutter, 8 Pick. 443. The principle settled by these cases was, that if the goods of a third person in possession of the debtor, and so intermingled with the debtor’s goods, that the officer, on due inquiry, cannot distinguish them, the owner can maintain no action against the officer, until notice, and a demand of his goods of the officer, and a refusal by him. All these cases presented this point as arising upon one species of property, viz. household furniture. They were cases where no difficulty existed in pointing out the precise articles claimed, and where the omission to do so, as it tended to entrap a public officer in the discharge of his duty, might reasonably be held to bar his right of action. They were cases where the owner knew the precise nature and extent of his claim, and the articles owned by him j where he had it in his power to designate and point out those articles, in distinction from other articles to which he made no claim. And the rules of fair dealing may well require, under such circumstances, that the particular articles claimed by him he pointed out and demanded, before the officer is sued for taking and detaining them. To this extent this rule may be a reasonable and proper one ; but care must be taken not to apply it beyond those cases where such pointing out of specific articles may be reasonably required of the party. As it seems to us, the rule should not be applied here. The plaintiff held a general mortgage, which in its terms covered all the articles on certain premises named in the mortgage, with the further provision that the mortgage should also embrace “ all other personal property ” which the mortgagor might “ put on said premises,” &c. This last provision, though of no effect to pass subsequently acquired property, (10 Met. 481,) might well be supposed by the plaintiff to have that effect; and a general claim made by him to all the property, under such mortgage, might not furnish any evidence of a design to mislead the officer. Under these circumstances, we think the plaintiff was guilty of no such nonfeasance in not pointing out the articles to which the mortgage did attach, and disclaiming all others, as should bar him of his right to recover for such of the articles as are now shown to belong to him.

Exceptions overruled.