Franklin v. Browning

Court Of Appeals Of Indian Territory

Franklin v. Browning

64 S.W. 563, 3 Indian Terr. 642, 1901 Indian Terr. LEXIS 28

CourtCourt Of Appeals Of Indian Territory

DecidedOctober 5, 1901

StatusPublished

This text of 64 S.W. 563 (Franklin v. Browning) is published on Counsel Stack Legal Research, covering Court Of Appeals Of Indian Territory primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franklin v. Browning, 64 S.W. 563, 3 Indian Terr. 642, 1901 Indian Terr. LEXIS 28 (Conn. 1901).

Pincite

Opinion

Townsend, C. J.

The appellant has filed two specifications of error as follows: “The court erred in sustaining the demurrer: (1) Because the answer filed as a cross complaint states facts sufficient to constitute a defense; (2) because the answer filed as a cross complaint states facts sufficient to authorize affirmative equitable relief.” Does the answer state facts sufficient to constitute an equitable lien? The answer to this question will determine whether this case should be affirmed or reversed. The only agreement there is is in the notes, as follows: “Value received for wintering cattle branded NS; cattle wintered by G-. W. Franklin to stand good for the payment of this note, and is to be paid out of the first shipment of said cattle.” Hence it appears that the consideration of the notes was not “wintering cattle,” and that the “cattle wintered” was to “stand good” for the payment, and the same to be paid out of the “first shipment” of said cattle. Now, if there was an equitable lien created here, what was it on? It certainly was on the “cattle' wintered, ” for they were the ones that were to ‘ ‘stand good. ” But it does not appear from the notes how many cattle were “wintered.” Therefore we are to look to the answer, and it says said [646]*646notes were given for “wintering” about 200 head.” Is it upon this “200 head” that the defendant claims a lien? It seems not, for he further says, “of which said brand there were about 2,000 head, and said notes were intended to, and did, secure to the defendant a lien on all said NS cattle for the payment of the debt therein expressed.” Therefore it clearly appears that defendant is seeking a lien on 2,000 head of cattle when only 200 head was to “stand good” for the notes. This is an attempt to fix a lien on 1,800 head of cattle that he did not' winter, and which lien, if there was any at all, was by the express terms of the note limited to the cattle wintered, which by the answer was on 200 head. It is not attempted by defendant in his answer to identify the 200 head that were to ‘ ‘stand good. ” Is this in accordance with the doctrine of equitable lien? “Every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated. * * * The property intended to be charged must be clearly identified or described.” 18 Am. & Eng. Enc. Law, pp. 608, 609. ‘ ‘In order, however that a lien may arise in pursuance of this doctrine, the agreement must deal with some particular property, either by identifying it, or by so describiug it that it can be identified, and must indicate with sufficient clearness an intent that the property so described, or rendered capable of identification, is to be held, given, or transferred as security for the obligation. * * * The form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose, rather than at the form; and if the intent appear to give or to charge or to pledge property, real or personal, as a security for an obligation, and the property is so described [647]*647that the principal things intended to be given or charged can be sufficiently identified, the lien follows.’" Pom. Eq. Jur. §§ 1285-1287. “The instrument creating the lien is not effectual unless it plainly designates the property to be charged, though only such an identification is required as is essential to an enforcement of the lien. * * * It is essential to an equitable lien that the property to be charged should be capable of identification, so that the claimant of the lien may say with a reasonable degree of certainty what property it is that is subject to his lien.” Jones, Liens (2d Ed.) §§ 38, 34. We think that the 200 head were not sufficiently identified, and that it would have been impossible for a court of equity to have decreed the sale of the 200 head wintered by appellant, for the reason that the notes and answer, taken together, do not sufficiently designate what cattle were to “stand good” for the payment of these notes. While appellant alleges in his answer and cross bill that said notes were indorsed to appellee with the agreement and understanding that appellee ‘ ‘would protect and enforce said lien,” it also appears by the express agreement in the notes that they were to be ‘ ‘paid out of the first shipment of said cattle.” This agreement controls, and in Jones, Liens, § 32, it is said: “The intention must be to create a lien upon the property, as distinguished from an agreement to apply the proceeds of a sale of it to the payment of a debt.” “A mere promise by a debtor to pay a debt out of a particular fund due him, as soon as he receives it, will not operate .to give his creditor a lien upon that fund. Ford vs Garner, 15 Ind. 298; Rodick vs Gandell, 1 De Gex, M. & G. 763; Burn vs Carvalho, 4 Mylne & C. 690; Wright vs Ellison, 1 Wall. 16, 17 L. Ed. 555; Williams vs Ingersoll, 89 N. Y. 508; Trist vs Child, 21 Wall, 441, 22 L. Ed. 623; Christmas vs Russell, 14 Wall. 69, 20 L. Ed. 762; Dillon vs Barnard, 21 Wall. 430, 22 L. Ed. 673; Rogers vs Hosack’s Ex’rs, 18 Wend. 319. Nor will a promise to pay a certain debt out of the proceeds of the sale of certain property (cat [648]*648tie) be a sufficient appropriation to create a lien thereon. Cook vs Black, 54 Iowa, 693, 7 N. W. 121.” Notes to 13 Am. & Eng. Enc. Law, p. 609. The clause in said notes, “cattle wintered by G-. W. Franklin to stand good for the payment of this note, and is to be paid out of the. first shipment of said cattle,” is an agreement, on the part of Skinner, the maker of said notes, to pay them out of the first shipment of said cattle. We are therefore of the opinion that the cattle wintered were not sufficiently described and identified to create an equitable lien, and that a fair construction of the clause in said notes is that it was only intended to pay out of the first shipment the notes, and that no lien was contemplated.

Some other questions are discussed in the briefs of counsel, but, in our opinion, the answer filed as a cross complaint did not state facts sufficient to constitute a defense, and therefore the judgment of the court below should be, and is, affirmed.

Clayton and Raymond, JJ., concur.

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Townsend, C. J.

The appellant has filed two specifications of error as follows: “The court erred in sustaining the demurrer: (1) Because the answer filed as a cross complaint states facts sufficient to constitute a defense; (2) because the answer filed as a cross complaint states facts sufficient to authorize affirmative equitable relief.” Does the answer state facts sufficient to constitute an equitable lien? The answer to this question will determine whether this case should be affirmed or reversed. The only agreement there is is in the notes, as follows: “Value received for wintering cattle branded NS; cattle wintered by G-. W. Franklin to stand good for the payment of this note, and is to be paid out of the first shipment of said cattle.” Hence it appears that the consideration of the notes was not “wintering cattle,” and that the “cattle wintered” was to “stand good” for the payment, and the same to be paid out of the “first shipment” of said cattle. Now, if there was an equitable lien created here, what was it on? It certainly was on the “cattle' wintered, ” for they were the ones that were to ‘ ‘stand good. ” But it does not appear from the notes how many cattle were “wintered.” Therefore we are to look to the answer, and it says said [646]*646notes were given for “wintering” about 200 head.” Is it upon this “200 head” that the defendant claims a lien? It seems not, for he further says, “of which said brand there were about 2,000 head, and said notes were intended to, and did, secure to the defendant a lien on all said NS cattle for the payment of the debt therein expressed.” Therefore it clearly appears that defendant is seeking a lien on 2,000 head of cattle when only 200 head was to “stand good” for the notes. This is an attempt to fix a lien on 1,800 head of cattle that he did not' winter, and which lien, if there was any at all, was by the express terms of the note limited to the cattle wintered, which by the answer was on 200 head. It is not attempted by defendant in his answer to identify the 200 head that were to ‘ ‘stand good. ” Is this in accordance with the doctrine of equitable lien? “Every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated. * * * The property intended to be charged must be clearly identified or described.” 18 Am. & Eng. Enc. Law, pp. 608, 609. ‘ ‘In order, however that a lien may arise in pursuance of this doctrine, the agreement must deal with some particular property, either by identifying it, or by so describiug it that it can be identified, and must indicate with sufficient clearness an intent that the property so described, or rendered capable of identification, is to be held, given, or transferred as security for the obligation. * * * The form or particular nature of the agreement which shall create a lien is not very material, for equity looks at the final intent and purpose, rather than at the form; and if the intent appear to give or to charge or to pledge property, real or personal, as a security for an obligation, and the property is so described [647]*647that the principal things intended to be given or charged can be sufficiently identified, the lien follows.’" Pom. Eq. Jur. §§ 1285-1287. “The instrument creating the lien is not effectual unless it plainly designates the property to be charged, though only such an identification is required as is essential to an enforcement of the lien. * * * It is essential to an equitable lien that the property to be charged should be capable of identification, so that the claimant of the lien may say with a reasonable degree of certainty what property it is that is subject to his lien.” Jones, Liens (2d Ed.) §§ 38, 34. We think that the 200 head were not sufficiently identified, and that it would have been impossible for a court of equity to have decreed the sale of the 200 head wintered by appellant, for the reason that the notes and answer, taken together, do not sufficiently designate what cattle were to “stand good” for the payment of these notes. While appellant alleges in his answer and cross bill that said notes were indorsed to appellee with the agreement and understanding that appellee ‘ ‘would protect and enforce said lien,” it also appears by the express agreement in the notes that they were to be ‘ ‘paid out of the first shipment of said cattle.” This agreement controls, and in Jones, Liens, § 32, it is said: “The intention must be to create a lien upon the property, as distinguished from an agreement to apply the proceeds of a sale of it to the payment of a debt.” “A mere promise by a debtor to pay a debt out of a particular fund due him, as soon as he receives it, will not operate .to give his creditor a lien upon that fund. Ford vs Garner, 15 Ind. 298; Rodick vs Gandell, 1 De Gex, M. & G. 763; Burn vs Carvalho, 4 Mylne & C. 690; Wright vs Ellison, 1 Wall. 16, 17 L. Ed. 555; Williams vs Ingersoll, 89 N. Y. 508; Trist vs Child, 21 Wall, 441, 22 L. Ed. 623; Christmas vs Russell, 14 Wall. 69, 20 L. Ed. 762; Dillon vs Barnard, 21 Wall. 430, 22 L. Ed. 673; Rogers vs Hosack’s Ex’rs, 18 Wend. 319. Nor will a promise to pay a certain debt out of the proceeds of the sale of certain property (cat [648]*648tie) be a sufficient appropriation to create a lien thereon. Cook vs Black, 54 Iowa, 693, 7 N. W. 121.” Notes to 13 Am. & Eng. Enc. Law, p. 609. The clause in said notes, “cattle wintered by G-. W. Franklin to stand good for the payment of this note, and is to be paid out of the. first shipment of said cattle,” is an agreement, on the part of Skinner, the maker of said notes, to pay them out of the first shipment of said cattle. We are therefore of the opinion that the cattle wintered were not sufficiently described and identified to create an equitable lien, and that a fair construction of the clause in said notes is that it was only intended to pay out of the first shipment the notes, and that no lien was contemplated.

Some other questions are discussed in the briefs of counsel, but, in our opinion, the answer filed as a cross complaint did not state facts sufficient to constitute a defense, and therefore the judgment of the court below should be, and is, affirmed.

Clayton and Raymond, JJ., concur.

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Bluebook (online)

64 S.W. 563, 3 Indian Terr. 642, 1901 Indian Terr. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-browning-ctappindterr-1901.

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