244. Description of Mortgaged Property must be Sufficient for Identification.

In respect to third parties, the description of mortgaged property in an instrument of mort

The words "we mortgage the property," when accompanied by a provision for the sale of it in case the money, recited in the instrument as being thus secured, is not paid, are clearly sufficient to create a mortgage: De Leon v. Higuera, 15 Cal. 483, 496.

No particular form of words is necessary to constitute a mortgage: Woodworth v. Guzman, 1 Cal. 203, 205.

6 As to Third Parties, description must be sufficient by inquiries directed by instrument to identify property: Hall v. Glass, 123 Cal. 500, 507, 69 Am. St. Rep. 77, 56 Pac. 336.

"The general rule is that the description in a chattel mortgage need not be so specific and certain that the property might be identified by the description alone. If the description of the personal property contained in the chattel mortgage is such as will enable third persons to identify the property, aided by the inquiry which the mortgage itself directs, the mortgage, when recorded, is notice to all third parties.

"Descriptions of personal property in a chattel mortgage are not required, of themselves, to fully identify the property. They are required to furnish the means and information by which, upon inquiry, the property can be identified. That is certain which can be made certain by making the inquiry indicated and directed by the mortgage': Alferitz v. Ingalls, 83 Fed. (C. C.) 964, 966, 968.

Thus, in Alferitz v. Ingalls, 83 Fed. (C. C.) 964, 967-969, the court held a movable property mortgage of 8,000 sheep, and the increase thereof," which set forth that at the time of the execution thereof they were owned by, and in the possession of, the mortgagors in Merced county, California, valid subse

gage must be sufficient to enable them by inquiries directed by the instrument itself to identify the property covered thereby; but as between the parties themselves is sufficiently certain if quently when the sheep had been driven into Esmeralda county, Nevada. The court said: "The description directed parties to the situs of the property

.. at the time of the execution of the mortgages. This directed. third parties to the starting point of inquiry. But the large bands of sheep on this coast are not usually kept in any particular farm or range. They are generally driven, as in the present case, from one county to another in the same state, or across the line into another state. In the summer time they are driven into the mountains, grazing upon the public lands, and there herded and kept, and upon the approach of winter are driven back to the valleys. The most the mortgage can do is to direct the attention of the parties to the time and place where the property was at the time of the execution of the mortgage, and it would be their duty, under such circumstances, to ascertain whether the property in the possession of the mortgagor at another place was the same band of sheep that was mortgaged. Any person who read the mortgages in question would naturally have concluded that the property would be, as it was, found in the possession of the mortgagors, and could have readily ascertained, upon inquiry suggested by the records, whether the sheep were of the same band described in the mortgages. Undoubtedly,

it would in all cases be safer, better, and clearer if marks and brands were mentioned in a description in a chattel mortgage, as it would obviate objections that might otherwise be urged to the validity of the description. But the decisions are universal to the effect that it is not necessary that the description in the mortgage should be such as would enable a stranger to identify the property."

Nor is a mortgage of "8,000 sheep, and the increase thereof" in Merced county void on the ground

that for aught that appears in the mortgage or the record thereof the mortgagor might have a great many more in his possession in the same county, as the court has no right to imagine facts to exist which if shown might invalidate the mortgage: Alferitz v. Ingalls, 83 Fed. (C. C.) 964, 967.

The following description is sufficient to mortgage all crops planted during the life of the mortgage: "All the crops and products, of whatever nature, which are now standing, or growing, or which shall or may hereafter at any time be sown, planted, cut, or harvested by the said party of the first part during the continuance of this mortgage, on the following described lands and premises, and every part and portion thereof, to wit. (the description of the land then following): Hall v. Glass, 123 Cal. 500, 505, 69 Am. St. Rep. 77, 56 Pac. 336.

7 As Between Parties Themselves description sufficient if capable of being made certain. Extrinsic evidence is admissible to identify the mortgaged property-that is, to apply to the property the descrip tion contained in the mortgage: Hancock v. Watson, 18 Cal. 317; California Title etc. Co. v. Pauly, 111 Cal. 122, 127, 128, 43 Pac. 586; Higgins v. Higgins, 121 Cal. 487, 66 Am. St. Rep. 57, note, 53 Pac. 1081.

"It is only necessary that the description of premises in a deed or mortgage be sufficiently definite and certain to enable the land to be identified": Rea v. Haffenden, 116 Cal. 596, 602, 603, 48 Pac. 716.

It is undoubtedly essential to the validity of a conveyance that the thing conveyed be described so as to be capable of identification, but it is not essential that the conveyance should itself contain such a description as to enable the identification to be made without the aid of extrinsic evidence. This doctrine as to conveyances is applicable to mortgages: De Leon v. Higuera, 15 Cal. 483, 496.

The mortgagor, however, cannot complain at the enforcement of a mortgage as it is written because of mere indefiniteness of description of the mortgaged property, whatever the effect of a sale under such description. If nothing passes, that is the misfortune of the mortgagee: Tryon v. Sutton, 13 Cal. 490; Whitney

capable of being made certain by extrinsic evidence. A mortgage may be valid as to property sufficiently described in. the instrument of mortgage, and void as to other property because of the insufficiency of the description thereof.8

245.

As Against Mortgagor Instrument of Mortgage may be Reformed.

As against a mortgagor and every other person except a bona fide purchaser or encumbrancer v. Buckman, 13 Cal. 536; Graham v. Stewart, 68 Cal. 374, 381, 9 Pac. 555.

Illustrations.-The word "estate," used without qualification in description of the property covered by a mortgage, comprehends all property susceptible of mortgage in respect to which the mortgage is properly executed: Higgins v. Higgins, 121 Cal. 487, 66 Am. St. Rep. 57, 53 Pac. 1081.

A description of the property mortgaged as the "interest in the quartz-mill and lode formerly owned by John H. Hancock, said interest being one-half of the mill and lode, when applied by extrinsic evidence, is sufficient: Hancock v. Watson, 18 Cal. 137.

Where the owner of a Mexican grant surveys and subdivides the same in the same way as if the grant was a part of the public domain, a description in a mortgage by such subdivisions is sufficient: Rea v. Haffenden, 116 Cal. 596, 602, 603, 48 Pac. 716; Savings Bank of San Diego Co. v. Daley, 121 Cal. 199, 202, 53 Pac. 420.

A trust deed in the nature of a mortgage of all the lands belonging to the trust or in a designated county covers all lands in that county shown by proper evidence dehors the trust deed to have belonged to the trustor at the time of its execution: Staples v. May (Cal.), 23 Pac. 710, 712B.

8 Hall v. Glass, 123 Cal. 500, 505, 69 Am. St. Rep. 77, 56 Pac. 336.

for value, a mistake in the description of mortgaged property, and all other mistakes arising therefrom, may be corrected by a court of equity as matter of course to conform to the intention of the parties.9

9 As Against Mortgagor Instrument of Mortgage may be Reformed: Woodworth v. Guzman, 1 Cal. 203, 205; Giselman v. Starr, 106 Cal. 651, 659, 40 Pac. 8. Davis v. Ward, 109 Cal. 186, 50 Am. St. Rep. 29, 41 Pac. 1010.

A court of equity may reform a mortgage by going back to the original mistake and correcting all subsequent mistakes which grow out of it: Quivey v. Baker, 37 Cal. 465; Donald v. Beals, 57 Cal. 399, 405.

Having reformed the mortgage and mistakes growing out of it down to the foreclosure sale of the mortgaged property, the court may direct a new notice and sale if justice requires it: Busey v. Moraga, 130 Cal. 586, 588, 589, 62 Pac. 1081.

Although it is conceded that the party might have had full relief from the mistake in the original action, he may nevertheless bring a separate action to correct the mistake: Busey v. Moraga, 130 Cal. 586, 588, 62 Pac. 1081.

Illustrations.-Where a subsequent purchaser received notice of the mistake after part payment of his purchase money, the mortgagee, upon refunding such part payment, may have the mortgage reformed and enforced: Davis v. Ward, 109 Cal. 186, 191, 50 Am. St. Rep. 29, 41 Pac. 1010.

A mortgage on the separate property of the wife may be reformed: Savings etc. Soc. v. Meeks, 66 Cal. 371, 5 Pac. 624.

Likewise a mortgage on the homestead of a married claimant: Stevens v. Holman, 112 Cal. 345, 350, 351, 53 Am. St. Rep. 216, 44 Pac. 670.

And a mortgage which was given to secure a nonnegotiable note which was transferred by the mortgagee for value after maturity: San Jose Ranch Co.