104 SALE AND MORTGAGE. 



•It was held also in this case that the purchaser of the three 

 hundred mares, having full knowledge of the mortgagee's 

 right to select fifty, was not prejudiced by a foreclosure of fifty 

 average head of the whole number. In a similar case it was 

 held that the creditor of the mortgagor purchasmg at his own 

 execution sale was charged with notice of the mortgagee's 

 right to designate which animals should be subject to his lien, 

 and that a designation to the agent of the mortgagee iden- 

 tified the property with sufficient certainty to sustain the 

 mortgage as against such creditor.^^^ In the Appellate Court 

 it was held that such a mortgage ceases to be a lien on the 

 offspring unless the mortgagee made his selection before it 

 became impossible to identify the young by reason of their 

 being separated from their mothers.^^^ 



A defect in a mortgage for a lack of separation may some- 

 times be cured by the subsequent act of the parties, removing 

 all doubt as to the identity of the animals mortgaged.^^* 



Where the mortgage is duly executed and recorded accord- 

 ing to the law of the State where the cattle then are, and the 

 mortgagor afterwards drives them into another State and 

 sells them there to a bona fide purchaser, the latter takes them 

 subject to the mortgage, though he has had no actual notice 

 of it.^'^ This depends, however, on principles of comity be- 

 tween the States, as to which there has been some conflict of 

 opinion. ^^® 



A mortgagee may maintain an action for damages for the 



'"Avery v. Popper (Tex. Civ. App.), 45 S. W. Rep. 951, distinguishing 

 Same v. Same (Tex. Civ. App.), 34 id. 325. 



'"Avery v. Popper (Tex.), 48 S. W. Rep. 572. modifying 45 id. 931, 

 supra. 



'-" Inter-State Galloway Cattle Co. v. McLain, 42 Kan. 680. 



See, in general, on the sufficiency of descriptions in chattel mortgages, 

 Jones Chat. Mort. (4th ed.) §§ 53-78, and the cases of mortgages of ani- 

 mals there cited. For additional cases, see Pingrey Chat. ]\Iort. § 161; 

 3 Gen. Dig. N. S., 983-984. 



''° Nat Bk. of Commerce v. Morris, 114 Mo. 255, and cases cited. And 

 see Edgerly v. Bush, 81 N. Y. 199; Riddle v. Hudgins, 58 Fed. Rep. 490. 



"" See Jones Chat. Mort. (4th ed.) §§ 299-307; 37 Cent. L. Journ. 375. 



