Lawrence v. Evarts & Cooper.

out to him, and told him they were mortgaged; that they were in the same place as described in the mortgage, from that time up to the date of the seizure by the coroner. The same machines that

had been pointed out to him, at the time the mortgage was given, were pointed out by him to the coroner at the time of the replevin. These machines were in the shop at the time of making the mort196] gage. This witness states also, that after the replevin, he finished two of them, one of which sold for $1,300, and one for $1,000.

The machines, as far as made when the mortgage was executed, were put together; but two of them lacked bed-pieces, and other constituents necessary to complete them. They were not one-third completed when levied upon.

A small amount of work and materials was added after the mortgage, and before the levy, but the precise amount does not appear. Machinists testified that a planing-machine, unfinished and incomplete, or lacking parts necessary to make it operate and work, was not considered by them a "planing-machine."

The unfinished machines, at the time the mortgage was made, were worth about three or four hundred dollars each.

The plaintiff in error claims that the description in the mortgage was sufficient to enable all interested to identify the property, aided by such inquiries as the subject would suggest, and therefore good; and that the court below erred in overruling his motion for a new trial.

Alex. H. McGuffey, and Mills & Hoadly, for plaintiff in error. Wm. Phillips, Jun., and F. Collins, for Cooper.

J. R. SWAN, J. The question made below and here, is whether the description of the articles mentioned in the mortgage is so uncertain and defective that they can not pass under the mortgage.

A mortgage of "all the stock, tools, and chattels, belonging to the mortgagor, "in and about the wheelright-shop occupied by him," is not void as against creditors; and the mortgagee may show, by parol evidence, what articles were in and about the shop when the mortgage was made. Harding v. Colburn, 12 Met. 333. And to the same effect is Morse v. Pike, 15 N. H. 529; Burdett v. Hunt, 25 Maine, 419; Wolfe v. Dorr, 24 Maine, 104; Winslow et al. v. Merchants' Ins. Co., 4 Met. 306.

Lawrence v. Evarts & Cooper.

*The principle to be deduced from these cases is, that any [197 description which will enable third persons to identify the property, aided by inquiries which the mortgage itself indicates and directs, is sufficient. The identity of the property is not, in such cases, ascertained by any specific description which distinguishes it from other property of the same kind of species, but by its locality.

The planing-machines in controversy in this case were sufficiently described in respect to their locality; and the only question remaining in the case, is, whether the unfinished machines could be denominated planing-machines.

Machinists in the purchase of a planing-machine, or the manufacturer, undertaking to furnish one for his customers, would of course be dealing about a complete working machine, and would not recognize as a planing-machine one that was incomplete and unfinished. The machinists who were examined as witnesses in this case seem to have been impressed with this idea, in testifying that unfinished planing-machines were not in fact planing-machines. That they were not planing-machines in this sense, is very clear; but it does not touch the question in the case. If it does, then every tool or implement mortgaged, if not perfect in its constituent parts, so as to be in working order, could not be covered by a mortgage or bill of sale, unless described as out of order or unfinished.

The real question is, whether so much of the machine was put together, as that it could be denominated a planing-machine in a mortgage or sale without misleading those who know what a planing-machine is. A watch without mainspring or hands might, very properly, be described in a mortgage as a watch; and it is clear that some of the material constituents of an article may be wanting, and yet the article be sufficiently designated by its usual name. All that seems necessary in such case of an unfinished or incomplete article is, that so much of it is put together or exists as to make it capable of identity as belonging to the description of article designated. To require more than this, would unnecessarily defeat a mortgage or other conveyance; less than this would mislead third persons. The court below seem to have adopted the rule that a mortgage describing an article as a *planing-machine [198 was void for uncertainty of description, because the planing-machine was unfinished. In this, a majority of the court are of the opinion that the district court erred. If sufficient of the materials VOL. VII-12

177

Paine, Kendall & Co. et al. v. Mason et al.

which usually compose a planing-machine were put together, so that, from its appearance, persons acquainted with planing-machines would not be misled by that designation, it is sufficient, although other and material parts were necessary to be added to make it complete. And the test of its answering the description does not depend so much upon the expense of the work and materials necessary to complete the machine, as upon the materials which have been put together indicating, from its appearance, that it is the kind of machine named in the mortgage.

Some materials and labor were added to the planing-machines, by the mortgagor, after the mortgage was made. The amount of these is too vaguely proved to raise any question as to their effect upon the rights of the mortgagee or the creditors of the mortgagor. Tudgment reversed.

BRINKERHOFF, SCOTT, and SUTLIFF, JJ., concurred.
BARTLEY, C. J., dissented.

PAINE, KENDALL & CO. ET AL. v. ORVILLE L. MASON ET al.

A mortgage of a leasehold for the term of ten years, accompanied by possession held under an instrument in writing not witnessed or recorded, comes within the terms and policy of the act of February 22, 1831, "to provide for the proof, acknowledgment, and recording of deeds and other instruments of writing," and, when executed and recorded in conformity with the provisions of that act, takes precedence over a prior mortgage not thus executed or recorded.

Under the act of February 24, 1846, “to require mortgages or bills of sale of personal property to be deposited with township clerks," a refiling of the original mortgage, with the proper and requisite indorsements, within thirty days preceding the expiration of a year from the original filing thereof, is a substantial and valid compliance with the fourth section of said act.

命

199] Where the year from the original filing of the chattel mortgage expires on Sunday, such Sunday is not excluded from the computation of the thirty days preceding the expiration of the year.

Actual notice of a prior mortgage is, per se, conclusive evidence of mala fides in a subsequent mortgagee; but constructive notice merely is not such evidence.

Paine, Kendall & Co. et al. v. Mason et al.

THIS cause was reserved from the district court of Cuyahoga county, for the purpose of settling the priority of lien between the plaintiffs and defendant, Mason. The other liens on the property were not contested.

On the 1st of January, 1853, Lewis C. Butts, a defendant, as trustee for Louise M. Butts, leased of I. L. Hewitt a lot of land, in the city of Cleveland, for ten years, the lease not being witnessed nor acknowledged. The lessee took possession, erected permanent buildings, put in a steam-engine, two planing-machines, and various other machinery; a large portion of the machinery being movable property.

On the 11th of July, 1853, the trustee, Lewis C. Butts, with the cestui que trust, Louise M. Butts and her husband, executed and delivered to John A. Warner a mortgage for $5,000 on said leasehold property, machinery, fixtures, etc. The mortgage being executed to pass real estate, was entered for record as a real-estate mortgage, July 12, 1853, and when so recorded was filed in the proper office as a chattel mortgage; to wit, on the 25th of July, 1853.

On the 10th of July, 1854, Warner filed in the proper office a copy of his mortgage, with a statement of his interest therein. This mortgage has been duly assigned to the plaintiffs, and they now claim under it. The petition was filed within a year after said renewal.

The defendant Mason claims under a mortgage given by the trustee, Lewis C. Butts, for $3,000, to S. B. Bliss, dated May 10, 1853. This mortgage also embraced the leasehold, machinery, and fixtures, but was not witnessed nor acknowledged as a real estate mortgage. The original mortgage was filed in the proper office as a chattel mortgage, on the 21st day of May, *1853. There [200 is no evidence that Warner had actual notice of this mortgage, when he took his, in July after.

On the 22d day of May, 1854, Bliss, in order to keep his lien good, made, or procured to be made, on his original mortgage, which had been filed as above stated, the following indorsements, to wit:

"May 22, 1854.

"I hereby consent that the within chattel mortgage shall be refiled as of the 20th of May. LEWIS C. BUTTS, Trustee. "Witness, C. W. CRUMB. "I also assent to the above. "Filed May 22. 1854, 2 P M.

O. L. MASON. LEE LORD, Recorder.

Paine, Kendall & Co. et al v. Mason et al.

"My interest to the whole of the within property remains in full force, and to the same extent as when the same was first executed. S. B. BLISS.

"CLEVELAND, May 20, 1854."

Lee Lord was the recorder of the county, and his office was the proper place to file a chattel mortgage executed by L. C. Butts. And the above indorsements, which were all made on the 22d of May, 1854, show all that was done by said Bliss to preserve his lien, until August 3, 1854, when he filed in said office a copy of his mortgage, with the proper statement of his interest therein.

This mortgage has been assigned to said Mason, and there is no question as to the consideration or amount of either mortgage. The 21st of May, 1854, was Sunday.

C. Stetson, for plaintiffs:

1. The mortgage given to Warner, and by him assigned to plaintiffs, if considered only as a chattel mortgage, must take precedence of that given to Bliss and assigned to Mason, on account of the failure of Bliss to renew his mortgage according to law, before the expiration of one year from the time the mortgage was was originally filed. Swan's Rev. Stat. 316, sec. 4.

The courts have no power to dispense with the express provisions of a statute limiting or prescribing the time for performing any act, and such has been the decision of other courts as well as our own. Ex parte Dodge, 7 Cow. 147; Moot v. Parkhurst, 2 Hill, 372; 201] Alderman v. Phelps, 15 Mass. *225; Bissell v. Bissell, 11 Barb. 96; Burr v. Lewis, 6 Texas, 76 (13 U. S. Dig. 608).

But even if the time had not elapsed, and the 22d of May were the proper time to renew the mortgage of Bliss so as to preserve the priority of his lien, we insist that there was on that day no substantial compliance with the statute.

2. The leasehold interest, including the buildings and such fixtures as were annexed to the land, must be considered as within the operation of the laws governing the sale or incumbrance of real estate, and never passed by the mortgage to Bliss, which was not witnessed, acknowledged, nor recorded as a real estate mortgage. Swan's Rev. Stat. 309, sec. 1; 310, sec. 9.

Prentiss, Prentiss & Newton, for defendant Mason.