gage is "124 head of mules, now in the territory of Kansas," and "one pair of claybank horses."

The property claimed by defendant in error, by virtue of this mortgage, and delivered to him by virtue of the order of replevin, is described by him in his affidavit, upon which the order is obtained, as follows, viz.: "Nineteen mules, most of them branded with the letter 'P,' and all of them were worked to Salt Lake City and back the present year," and one yellow pony with some white about him."

We are forced to the conclusion that when tested by either of these rules, the description of the mules is far less full, definite, and satisfactory than it might have been made, and that of the pony is fatally defective.

If the mules had been described in the mortgage as they were in the affidavit, or as being all the mules the mortgagor had in said territory of Kansas, or as the same then in the care of H. C. Branch, in Leavenworth County, Kansas, third persons might, in the language of Judge Swan, have been able. to identify the property, aided by the inquiries which the mortgage itself would, in that case, have indicated and directed.

It does not appear how many other mules Perry had in Kansas at the time the mortgage was made, but he might have had a much larger number than he chose to include in the mortgage, and as there was nothing to distinguish those intended to be included in the mortgage from the rest, an indefinite amount of stock might, perhaps, have been shielded from the claims of creditors by the mortgage of a small part of them.

་

It is difficult to see how the "yellow pony with some white about him" can be claimed under the description in the mortgage of "one pair of claybank horses." Though a "pony" is defined by Webster to be a "small horse," the terms "horse" and "pony" are not in common usage and acceptation synonymous or convertible terms, but on the contrary, the term "pony" is used to distinguish from horses in general a peculiar breed, having well-known and strongly marked characteristics. If the description in the mortgage of "one pair of claybank horses" was meant to include a "yellow pony with some white about him," it must be deemed a singularly inapt and unsatisfactory description, nor is it aided in the slightest degree by the context. The mules are referred to as being 124 in Kansas, and 4 in Platte County, Missouri; but though the

pany appears to have been in Kansas, it is not so stated in the mortgage. The expression, "a pair of horses," would ordinarily be understood to mean a matched pair, or at least a pair mated and used together; and the next articles mentioned in the mortgage are "one rockaway, and the harness belonging to the same," tending to strengthen the supposition that the claybank horses were carriage-horses, which ponies ordinarily are not.

2. But it is further objected against the validity of the mortgage that while the instrument imports a delivery of the property upon its face, there was in fact no delivery or change of possession, either actual or constructive. That such delivery is essential to the validity of the mortgage as against third parties is unquestionable.

Justice Gibson remarks that delivery of the subject-matter of the contract is as requisite in the case of a mortgage of goods as it is in the case of an absolute sale: Clow v. Woods, 5 Serg. & R. 278 [9 Am. Dec. 346].

Justice Woodbury says: "In all cases of personal property mortgaged, the mortgagee ought to take possession, or place his lien on record for notice to the world": Leland v. Medora, 2 Wood. & M. 103.

And to the same effect, Chief Justice Shaw of Massachusetts: "By the general rule of the common law, upon a transfer of goods, whether absolute or conditional, as against third persons, there must be a delivery, and in general, also, the custody and possession of the goods must be retained by the vendee": Bullock v. Williams, 16 Pick. 34.

It is, however, well settled that in states where the statutes provide for the registration, filing, or recording of such mort gages, such recording is equivalent to delivery; as, for ex ample, in Maine, where it was held that "registration is a substitute for delivery, and a mortgage duly recorded is valid against all the world, though the mortgagor retain possession as before": Smith v. Smith, 24 Me. 555.

So in Massachusetts: "By our statute, the registration of a mortgage of personal property is substituted for delivery of possession; and a mortgage duly executed and recorded is effectual to pass the property described in it without any other act or ceremony": Shurtleff v. Willard, 19 Pick. 211.

Similar statutory provisions exist in most of the states of the Union: See 2 Hilliard on Mortgages, Appendix.

This brings us to consider whether the recording of the

Perry mortgage in Platte County, Missouri,-being the county of the mortgagor's residence, can, as to property in Kansas, be considered as a substitute for and equivalent to the delivery of such property, and the continued change of possession which would otherwise be indispensable.

The chief object of registration is, unquestionably, to give notice to all the world, and especially to creditors of the mortgagor, of the existence of the lien.

It is now generally provided by the statutes of the several states that personal mortgages, like those of real estate, shall be publicly registered or recorded, in order to give them validity against any one but the parties themselves, unless the mortgagee take and retain possession of the property, in which case registration is dispensed with because the purpose of it-notice of the encumbrance-is accomplished in another way: 2 Hilliard on Mortgages, 244.

To the same effect, Chief Justice Shaw remarks that "regis tration is required, as giving equal and perhaps greater notoriety to the transaction than delivery and retaining possession": Bullock v. Williams, 16 Pick. 34.

Such being the object and purpose of registration, can it be reasonably argued that the purpose is accomplished by the registration in this case?

The property in dispute was, at the time of making and recording the mortgage, in Kansas, and parties in Kansas were perhaps dealing with and giving credit to the mortgagor from the knowledge that he possessed such property, to which they might look for repayment. If the registration of Perry's mortgage in Platte County, Missouri, must be held to be notice to such creditors, because Perry lived in Platte County, then registration in St. Louis County, Missouri, or in any othercounty in Maine, Florida, Texas, or Oregon, must be held as equally valid as notice to creditors here, in case their debtors owning property here reside in those counties.

But the fact is too plain for argument that such registration would not be notice to creditors here in any beneficial sense.

But it is still contended for plaintiff in error that if the mortgage created a lien, valid by the laws of Missouri, it is valid here, and the cases of Kanaga v. Taylor, 7 Ohio St. 134 [70 Am. Dec. 62], Offutt v. Flagg, 10 N. H. 46, and Martin v. Hill, 12 Barb. 632, are cited in support of the asserted claim. In the case of Kanaga v. Taylor, supra, the court held that where Gregory, residing in New York, purchased of Kanaga

a piano, for which he paid in part, and gave a chattel mortgage upon the piano for the balance, which mortgage was recorded as required by the terms of New York, and afterwards Gregory removed to Ohio and pledged the piano to one Moore, who in turn sold it to Taylor, the defendant, without notice of encumbrance. The court held that Kanaga was entitled to recover of Taylor, by virtue of his mortgage, the amount due to him on the piano, from Gregory, and in support of their decision the court (Bowen, J.) use the following language, viz.:

"Holding this instrument, then, as the plaintiff did, as a legal and valid one, by the law in force where he obtained it, he was entitled to enforce it; but as the power to do that had been cut off by the removal of the property beyond the jurisdiction of the state, it was proper for him to sue in the courts of this state, and to derive the same relief by his action as if he were pursuing a remedy where the contract was made": Kanaga v. Taylor, 7 Ohio St. 141, 142 [70 Am. Dec. 62].

Without deeming it necessary to controvert this reasoning, it is sufficient for our present purpose to remark that the case of Kanaga v. Taylor, supra, may be distinguished from the one at bar, from the fact that in the former the property mortgaged was at the time of the mortgage in the state and county where the mortgage was recorded; was subject to the jurisdiction of that state, and hence a valid lien was created by the registration; while in the case at bar, the property being in Kansas, while the mortgage was executed and recorded in Missouri, we must concede to the legislature of Missouri an extraterritorial force and efficiency, not claimed in Kanaga v. Taylor, 7. Ohio St. 134 [70 Am. Dec. 62], for the legislature of New York, in order to support the validity of the lien here claimed.

So in the case of Offutt v. Flagg, 10 N. H. 46, where it is held that "a mortgage made out of the state, which is valid according to the laws of the state in which it is executed, and the property is afterwards removed to New Hampshire, no registration is necessary."

Upham, J., remarks: "The property was there; the contracting parties were there; and on every principle the lex loci governs": Offutt v. Flagg, 10 N. H. 46.

In Martin v. Hill, 12 Barb. 631, where a yoke of oxen had been mortgaged in New York, and afterwards removed by the mortgagor into Vermont for a temporary purpose, and there

attached for a debt of the mortgagor, the courts of New York held the mortgage valid as against the attachment.

But in all these cases it will be seen that the property was at the time of the mortgage within the limits of the state under whose law it was recorded, while in the case at bar the record was made in Missouri, while the property was, and for a long time had been, in Kansas.

But the supreme courts of Vermont and Michigan, in direct opposition to the doctrine of the three cases above cited, have decided that a chattel mortgage, executed and recorded according to the laws of another state, where there is no change of possession; will not be valid as against the claims of attaching creditors, if the property is removed into those states: Farnsworth v. Shepard, 6 Vt. 521; Woodward v. Gates, 9 Id. 361; Gates v. Gaines, 10 Id. 349; Lynde v. Melvin, 11 Id. 686 [34 Am. Dec. 717]; Kendall v. Samson, 12 Id. 515; Rockwood v. Collamer, 14 Id. 141; Skiff v. Solace, 23 Id. 279; Montgomery v. Wight, 8 Mich. 143.

We will only remark further, that at the time this mortgage was executed and recorded in Missouri, there was no statute in force in Kansas providing for the registration of chattel mortgages here,—the Missouri statutes of 1855 having been repealed (see acts of 1859), and that the statute subsequently enacted expressly provides that such mortgages of property belonging to non-residents shall be recorded in the county in which the property is: Kansas Laws, 1860.

Ordered by the court that the judgment rendered in this cause, in the court below, be reversed, and the cause remanded for a new trial.

CHATTEL MORTGAGE, DESCRIPTION OF PROPERTY IN, what sufficient: See Harding v. Coburn, 46 Am. Dec. 680, and note 686; Winslow v. Merchants' Ins. Co., 38 Id. 368. Where a chattel mortgage neither sufficiently describes the property nor states where it is situated, nor gives the place, county, or state where either the mortgagor or mortgagee resides, it is insufficient and defective: Parsons Savings Bank v. Sargent, 20 Kan. 580. The description, to be good, must contain either some hint which will direct the attention of those reading it to some source of information beyond the words of the parties to it, or something which will enable third parties to identify the property, aided by inquiries which the mortgage indicates and directs, or a description which distinguishes the property from other similar articles: Id.; Tootle, Hanna, & Co. v. Lyster, 26 Id. 597, both citing the principal case, which is cited in the last-mentioned case, and Tindall, Adm'r, v. Wasson, 74 Ind. 500, as an example of an insufficient description of property in a chattel mortgage.