mortgagp: of animals and their increase. 103 



the line of inquiry and furnishing a basis for identification.-"^ 

 On the other hand, a description of "a brindle cow about three 

 years old," was held sufficient to put a party intending to .pur- 

 chase it on inquiry, although the mortgagor had two cows 

 answering to such description.^"* And it was held by the 

 Supreme Court of the United States that a mortgage cover- 

 ing a specified number of sheep out of a larger number owned 

 by the mortgagor, there being no means of identification, was 

 valid as against a subsequent mortgagee having knowledge of 

 the facts, though not as against third persons with acquired 

 interests.^"" So, where there is a description of a herd from 

 which by the terms of the mortgage the mortgagee is to make 

 a selection, it was held in Texas that this is sufficient as 

 against a purchaser with notice. ^^" A later Texas case goes 

 still further and holds that where a mortgage conveyed fifty 

 mares with a certain brand, the mortgagor owning three hun- 

 dred such mares and there being no way of determining which 

 of the three hundred were intended to be mortgaged, it was 

 not void for uncertainty and the mortgagee had the implied 

 power to elect as to which ones should be deemed to be in- 

 cluded in the mortgage. The court said: "In order to give 

 effect to such intent, there must be found in the instrument 

 either (i) some descriptive matter which, when applied to the 

 herd, will enable one to ascertain the very animals intended 

 to be conveyed ; or (2) an express or implied power of selec- 

 tion, or, in legal terminology, 'election.' " ^^^ 



'" Parker v. Chase, 62 Vt. 206. And see Jacobson v. Christensen 

 (Utah), 55 Pac. Rep. 562. 



™ Harkey v. Jones, 54 Ark. 158. 



'" Northwestern Bank v. Freeman, 171 U. S. 620. 



""Lay V. Cardwell (Tex. Civ. App.), 33 S. W. Rep. 595. 



'" Oxsheer v. Watt (Tex.), 41 S. W. Rep. 466. Heyward's Case, 2 

 Coke, 34 b., 37 a., is quoted: "If I give you one of my horses, in my stable, 

 there you shall have election, for you shall be the first agent by taking 

 or seizure of one of them." See, also, Same v. Same (Tex. Civ. App.), 

 42 S. W. Rep. 121. 



This case was followed in John S. Brittain Dry-Goods Co. i'. Blanchard 

 (Kan.), 56 Pac. Rep. 474. 



