Calvit v. Avery State Bank

283 S.W. 322, 1926 Tex. App. LEXIS 1069

• Court: Court of Appeals of Texas
• Decided: March 11, 1926
• Docket: No. 3190.
• Status: Published

Opinions

The first contention of appellant is that Mayo Johnson had no such interest in the cotton raised as was a subject-matter of mortgage. The agreement between Mayo Johnson and Iverson Johnson was, in effect, a partnership in the entire crop, in which for their mutual benefit the land was cultivated by Iverson Johnson, the teams and tools and a day hand being furnished for the purpose by Mayo Johnson, the net results to be equally divided in kind between them. It was not in the nature of a mere agreement to pay a debt out of a certain fund. At the time Mayo Johnson executed the chattel mortgage to the bank, July 4, 1924, the cotton had been planted and was practically matured. He had a present interest in the crop. Therefore Mayo Johnson possessed some potential interest in the cotton mortgaged. It is sufficient that the mortgagor possesses some interest in the property mortgaged, although it be a limited or special interest, as where the mortgagor had an equitable interest or owns an undivided share, in the case the acquisition of such interest and the execution of the mortgage are concurrent. 11 C.J. p. 428.

The appellant insists that there is an insufficient designation of the property mortgaged and of the place where it may be found to legally impute notice to third parties. The appellant objected to the introduction of the chattel mortgage in evidence upon such ground. The description in the mortgage is indefinitely phrased as follows:

"My interest in 80 acres of cotton being grown on the Calvit farm on Red river during the year 1924."

It is manifest that the description would not, taken alone, be sufficient to lead to an identification of such property. That is the legal task of sufficiency of description upon which to found purely constructive notice to third parties. It does not point out any particular cotton as that to which the parties then contemplated a lien would attach, or point out any special tract or part of land on which it was to be produced. In order to the sufficiency of the mortgage upon which to found purely constructive notice, the place where the property may be found should be described sufficiently specific to enable a third person to go to the place indicated and set the property apart. It is not sufficient to say that it is in a county named, or "on the Calvit farm on Red river." Watson v. Paddleford Son. 221 S.W. 569, 110 Tex. 525; McDavid v. Phillips, 91 S.W. 1131, 100 Tex. 73. In the instant case the appellant had no notice from any source, by inspection of the record or otherwise, that the bank had a lien on the cotton, and the bank in no wise relies upon notice to appellant of its lien other than such as the record of the instrument may import. Therefore, in the absence, as here, of either actual or constructive notice of the bank's lien, a liability against appellant as for conversion of the proceeds of the cotton cannot legally be predicated. In other respects there was error in the trial as to procedure or in the judgment rendered.

The judgment will be modified so as to deny a recovery to the bank against the appellant of the $378 as for conversion of the proceeds of the cotton and, as so modified, the judgment will then be in all things affirmed. The costs of appeal and all costs incurred by appellant in the district court will be taxed against the bank.

On Rehearing. As determined in the original opinion, the location of the mortgaged property was insufficiently described, invalidating the mortgage as notice as to third persons, the property not otherwise being sufficiently identified. We now doubt the propriety of such construction of the mortgage, and grant the motion for rehearing. In reality, according to the face of the instrument, the property mortgaged was the mortgagor's "interest in 80 acres of cotton" located "on the Calvit farm on Red river" in "the county of Bowie, state of Texas." It is as certain of locality as "the L. M. pasture about 18 miles south of Dundee, Texas." Scaling v. Bank, 87 S.W. 715, 39 Tex. Civ. App. 154.

The location of the mortgaged property is not required to be described with such particularity or so completely certain as to preclude the necessity of extraneous inquiry as to third persons; approximate certainty of description of locality suffices. If by giving the recorded mortgage the meaning it was intended to convey the third person is able to know the locality or situs of the property, it would be sufficient, as to the locality, to charge him with notice.

The judgment is affirmed.