#### A. J. Augustine v. J. E. McDowell, Defendant, and Jas. Winkleman, Intervener, Appellant.

1 Sale of Standing Corn; title. A written agreement to( sell *a>*certain number of bushels of corn to be taken from a standing field does not pass the title, though a portion of the purchase price is paid. -

2 Chattel Mortgage: description. A mortgage covering “seventy, more or less, of corn in field’ ’ is not such a description as maybe aided by extrinsic evidence; it is in fact no description.

3 Sale of Corn: when title passes. Where one pays for corn and it is set apart in the crib of the seller with nothing further to-be done except for the seller to assist in hauling, the title-thereto passes.

4 Appeal: sufficiency op notice. A notice of appeal which states-“intervener in the above cause has appealed the same to the *402supreme court * * *” is not open to the objection that it does not specify what is appealed from, even though there were ■ practically two judgments where exception was taken to both.

*Appeal from Mahaska District Court.*— HoN. A. R. Dewey, Judge.

Friday, May 15, 1903.

ActioN in replevin for corn. James Winkleman intervened, claiming four hundred bushels under a chattel mortgage and by purchase. Defendant answered, denying plaintiff’s title. Judgment as prayed, and intervener ap*peals.*

Reversed.

*J. F.*efe *W. R. Lacey*and *Q. C. Orvisiox*appellant.

*Reevers c& Malcolm*for appellee.

Ladd, J.

In August, 1900, the plaintiff, Augustine, contracted with defendant, McDowell, for the purchase of one thousand bushels of corn. On the first six hundred bushels, $25 wag. paid, and the following agreement duly Signed:' “Sold to A.'J. Augustine one-mile west of Rose Hill, Iowa,' six hundred bushels of corn to be delivered in November, 1900, at A. J. Augustine’s farm at twenty cents per bushel, 80 lbs, to the bushel.” The contract for the four hundred bushels was the same, except that it was to be delivered in December, seventy-five pounds to the bushel, and $30 was paid. McDowell raised ‘ about three thousand five hundred bushels of corn, and, after hauling two hundred and eighty-one bushels, refused to ■deliver the rest. But four hundred and ninety bushels ■remained on the premises when this suit was begun, and •this was replevied by the plaintiff.

.It Will' be noticed that -the corn, when bought by ■'Augustine, was standing in the field. None of it then or afterwards was set apart from that to be retained by Me-*403Dowell. There was nothing to show which corh had *a.*sale of comf“fie. been bargained for. The contract was not a sale, but merely an agreement to sell. The advance of money to the defendant did not convert it into ¡an .executed contract. Says Mr. Benjamin in his work on Sales: “No case can be found in the books in which the .giving of earnest has been held to pass the property in the ■subject-matter of the sale, where the completed bargain, if proved in writing or in any other sufficient manner, would not have equally altered the property. ” Two things Temained to be done by the vendor — the corn to be separated from three thousand five hundred bushels owned by him, and thereafter delivered at the farm. In *Cook v.*Logan, 7 Iowa, 142, the court, in a very similar case, said: "‘The rule is that where some act remains to be done in relation to the articles which are the subject of the sale, ■as that of measuring or weighing, or, as in this case, that ■of separating and setting them apart from the bulk, so. that they may be distinguished and identified, the. performance of such an act is a prerequisite, and until it is performed the property does not pass to the vendee.” This rule has been repeatedly approved since, aiid- still obtains, unless it is made to appear that the parties intended title sooner to pass. *Welch v. Spies,*103 Iowa, 389, and cases cited; *Snyder v.*Tibbals, 32 Iowa, 447; *Sneathen v.*Grubbs, 88 Pa. 147; *Morrison v. Dingley,*63 Me. 553. The principle is elementary, and, when applied to the facts of this case, leads inevitably to the conclusion that plaintiff never acquired title to the corn not delivered. But McDowell has not appealed, and the adjudication against him is final.

Plaintiff, then, has a *prima facie*right of possession, and the burden of proof"was upon interveñer to 'establish his title. Pie claims four hundred bushels of-the corn re- #. chattel description, plevied under a chattel mortgage,'’ and by virtue of a purchase from McDowell. • This *404mortgage was executed to him by McDowell August 17, 1900, to secure him as surety on a note of $110 payable at a bank, on certain horses, and “seventy, more or less, of corn in field on the Chas. F. Landers, farm, in section 7 Twp. 75 N., Range 14, Mahaska County, Iowa.” As will be observed, it failed to state the quantity of corn pledged —whether seventy rows, bushels, shocks, or acres. This was not merely a defective description, as suggested by appellant, to be aided by extrinsic evidence, but no description at all. Oral evidence may be received as between the parties, or against a third party having notice, to apply the description in such an instrument, and thereby to identify and point out the particular property mortgaged,, as has often been held, but not to insert the property intended to be, but not in fact, covered thereby. The facts of this case do not bring it within the rule of the majority in *Frick v.*Fritz, 115 Iowa, 433. In both the number is given, but in that the mortgage covered “yearlings and two year olds,” but in this it covers nothing. In that the majority held oral evidence admissible to point out the' kind of stock intended by the description; in this, the kind, is indicated, but the mortgage- is silent as to quantity. , The distinction is manifest, and we unite in saying the: mortgage did not constitute an incumbrance or lien on the corn.

The intervener further contends that about January-20, 1901, he entered into an oral agreement with McDowell,, by the terms of which intervener was to pay the note to, 3. sale of com: passes. the bank, and in consideration thereof, was, to have four hundred bushels of corn; that in pursuance of this agreement he paid the note, and three-hundred bushels in a certain crib and the granary were-measured by him and McDowell, and declarded to be inter-vener’s corn, which McDowell was to help haul to Winkle-man’s place. It was farther understood that he was to have one hundred and twenty-five bushels from a pile of *405snapped corn. Enough has already been said to dispose of the claim to the one hundred and twenty-five bushels. As to the three hundred bushels the evidence is undisputed, nothing remained to be done as between the parties to complete the sale, and we know of no reason why the in-tervener should not have judgment for its value. The sheriff was informed that the corn belonged to Winkleman before the writ of replevin was served, so that there is no question of notice involved. Indeed) it may well be questioned whether plaintiff was in a situation to insist on notice, as he is not claiming as a creditor, and has failed to establish ownership. True, as contended, the inter-vener, as supposed mortgagee, consented to the sale of one thousand bushels of McDowell’s corn to plaintiff. But this did not preclude him from buying from the three thousand five hundred bushels owned by McDowell for himself. He bought as he had the perfect right to do, and acquired title by having it set apart to him before McDowell had parted with it to another. The court ought to have entered judgment in favor of the intervener for the value of three hundred bushels of the corn taken under the writ.

II. Appellant’s abstract set out the notice of appeal, which was duly served, and, after the title of the case, was in these words: “The intervener in the above cause has 4. appeal: sufficiency of notice. appealed the same to the Supreme Court of Iowa, May term, 1902. 5 Appellee prepared an additional abstract, without referring to this notice, and thereafter filed a motion to dismiss the appeal. In it the notice, as served, is set out, and, though more formal, is substantially the same. It may be repeated, except the title and names of attorneys, in so far as material: “You are hereby notified that intervener in the above cause has appealed the same to the Supreme Court of the state of Iowa, and the same will come on for trial at the May term,” etc. Counsel insist that this was insufficient, in that it failed to designate what is appealed from. Secti m *4064114 of the Code provides that “An appeal is taken and perfected by the service of a notice in writing on the adverse party,his agent, or any attorney who appeared for him in the case in the court below, and also ■ upon the clerk of the court wherein the proceedings were had, stating the appeal from the same, or from some specific part thereof, defining such part.” It is true that there were practically two-judgments below — one for the possession of the corn, and the other a dismissal of the petition of intervention. But the exception of intervener was to both of these, in so far as either affected his rights. His appeal, then, was from the entire proceeding, and this is all the statute seems to. require shall be indicated in the notice. From an appeal of the cause, this is necessarily to be inferred. If the notice is as specific as exacted by statute, it is not open to the objection that it is a mere conclusion. — Beversed.