Such a finding would support such a judgment. If the defendant sets up an affirmative right to the property, and there is a finding in his favor, a return of the property will be adjudged. If the right of property is put in issue by the defendant, and the finding is in his favor, the award of a returno habendo is a matter of course, whether he prayed for a return in his plea or not. King v. Ramsay, 13 Ill. 619. If the answer states facts as to the ownership or right of possession sufficient to justify a return, and the evidence warrants it, a judgment of return will be awarded. Lewis v. Buck, 7 Minn. 105, (Gil. 71.) The averment of title by the defendant, or a plea setting up ownership in a third person, averring a right of possession, with a formal traverse of the plaintiff's right, is sufficient to justify a judgment for the return of the property. Wells, Repl. § 489.

If, therefore, a judgment for return of the property is awarded as a matter of course where the right of property is put in issue by the defendant, and the finding is in his favor, it follows that a finding that at the commencement of the action the property was delivered to the plaintiff is immaterial. The finding of an immaterial fact, not within the issue tendered, will not vitiate the judgment. Judgment affirmed, with costs.

SPECIFIC PERFORMANCE OF CONTRACT-DEGREE OF CERTAINTY REQUIRed in DeSCRIPTION OF LANDS.

It is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely useless when the writing comes to be applied to the subject-matter. The terms may be abstract and of a general nature, but they must be sufficient to fit and comprehend the property which is the subject of the transaction; so that, with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the very property intended, and to the exclusion of all other property.

Appeal from Third district, Lewis and Clarke county.

Carter & Edgerton, for appellant.

Sanders & Cullen, for respondent.

GALBRAITH, J. This is an appeal from a judgment rendered in favor of the respondent and against the appellant upon the motion of the former for judgment on the pleadings. This action was to compel the specific performance of a contract. The pleadings, so far as it is nec-` essary to recite their statements in order to understand the question presented, are as follows:

The complaint alleges that the respondent, being seized in fee-simple of the real property hereafter described, in the city of Helena, on or about the second day of May, 1882, the appellant and respondent entered into an agreement by which the respondent, in consideration of $2,100 to be paid by the appellant, agreed to sell and convey to him the said property. The property consisted of lots described as follows:

A piece of ground commencing on the corner of contemplated crossstreet with Main street, the cross-street supposed to be Eleventh avenue; said ground running on a line of Main street one hundred feet front on the east side of said Main street, and extending back from Main street 125 feet to an alley; and also two lots on Ewing street, one hundred feet front on the west side of said Ewing street by one hundred and forty-one and one-half feet deep to an alley, and being further and more particularly described as to the said first-mentioned property, commencing at a point on said Main street from which the north-east corner of government survey lot number three (3) of section thirty, township No. ten (10) north, of range No. three (3) west of principal meridian of Montana, bears north 2° 45" west, 648 feet distant; thence north 30° east, along the east line of Main street one hundred feet to a point; thence south 60°, east one hundred and twenty-five feet, to a point on the west line of contemplated alley; thence south 309, west along the west line of said alley one hundred feet, to a point on the line of the contemplated Eleventh avenue, one hundred and twenty-five feet to the place of beginning. And as to said Ewing-street property, being more particularly described as beginning at a point from which the north-east corner of government survey lot No. three (3) of section thirty, (30,) township No. ten (10) north, of range No. three (3) west princ. meridian Montana, bears north 71° 36' west, 1,605 feet distant; thence running north 30°, east along the west line of Ewing street one hundred feet, to a point; thence north 60°, west one hundred and forty-one and one-half feet, to a point; thence south 60°, east one hundred and forty-one and one-half feet, to the place of beginning."

That at the time of the agreement five dollars of the consideration was paid and accepted by the respondent as part payment thereof; that at the time of entering into the agreement there was a written note or memorandum thereof, subscribed by the respondent. There then followed the usual averments of willingness and readiness of the appellant to perform his part of the contract, and tender by him of the balance of the purchase money, and refusal thereof by the respondent; that since the date of the agreement the respondent has refused and still refuses to recognize the agreement; and that thereby the appellant has been damaged in the sum of $2,000.

The answer denied that there was ever any other contract than the following, which was in writing:

"MAY 2, 1882.

"Have sold James M. Ryan a piece of ground commencing on the corner of contemplated cross-street with Main; the cross-street supposed to be Eleventh avenue; said ground running on a line of Main street one hundred (100) feet front on the east, and extending back from Main street 125 feet to an alley; and also two lots on Ewing street, 100 ft. front on the west side by 141 feet deep to an alley, for the sum of $2,100.00; the sum of $5.00 being paid to bind the bargain.

[Signed]

"In presence of B. F. HOOPER.”

"Jos. DAVIS.

It denies that the appellant paid the above sum of five dollars as part payment of the purchase money, or that such sum was ever so received by the respondent, or that he ever repudiated any contract or agreement between the appellant and respondent, or that appellant ever tendered performance of the said contract until the appellant had notified the respondent that he (appellant) would not pur

chase the land referred to in said memorandum. There was no reply. It will therefore be presumed that the only contract between the parties was that contained in the written note or memorandum set forth in the answer.

The only question presented in this case is whether or not the memorandum contains such a description of the property as constitutes it a contract, or a note or memorandum tuereof, within the meaning of section 162, art. 1, c. 13, (5th Div. Gen. Laws,) of the Revised Statutes of 1879, in relation to void and fraudulent conveyances and contracts, which reads as follows:

"Every contract for the leasing for a longer term than one year, or for the sale of any lands or interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the parties by whom the lease or sale is to be made."

In determining the question presented in this case we can only consider the memorandum itself. It is evident, upon an examination of the description contained in the instrument, that it is ambiguous. This is admitted; but it is claimed that this ambiguity may be explained by parol. We must first examine the description contained. in that instrument to determine whether or not it is one which should be permitted to be explained by parol; in other words, whether it falls within or not the class of what are termed patent or latent ambignities. In Eggleston v. Wagner, 46 Mich. 610, S. C. 10 N. W. Rep. 37, cited by appellant, GRAVES, J., says:

"The degree of certainty with which the premises must be denoted is defined in many books, and the cases are extremely numerous in which the subject has been illustrated. They are not all harmonious, but they agree in this: that it is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject-matter. The terms may be abstract and of a general nature, but they must be sufficient to fit and comprehend the property which is the subject of the transaction; so that, with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the very property intended, and to the exclusion of all other property. * * * Whether the description answers the requirement of the statute is the question which occurs on the face of the papers, and is naturally preliminary to the introduction of testimony to connect the contract with the property, and the decision of it would regularly seem to be required on an inspection of the documents and before the arrival of opportunity for any conflict of the kind referred to." In Bowers v. Andrews, 52 Miss. 596, SIMRALL, C. J., said:

"Every conveyance of land must define its identity or fix its locality. That may be done in two modes. The first is by so complete a description in the deed itself as points directly to the subject-matter; or, second, by referring to something aliunde the deed, which, when consulted, indicates the property."

Can we say, by an examination of the description in this instrument, that it fits and comprehends the property? or that, without being added to, it can be connected with and applied to the very property intended, by the aid of extrinsic evidence, and to the exclusion

of all other property? or, when submitted to virtually the same test as laid down by SIMRALL, C. J., supra, "is the description so complete that it points directly to the subject-matter, or does it refer to something aliunde the instrument, which, when consulted, indicates the property." The description in this case does not itself identify the property, nor state directly where it is; neither does it indicate any extrinsic fact which will serve to fix its identity or locality. The more particular description contained in the complaint, after the description stated as contained in the memorandum, is not the description of property directly pointed out by the description contained in the memorandum, nor made by reference to any extrinsic fact stated in the memorandum, which, when connected, indicates the property described in such more particular description. This more particular description itself indicates that parol evidence must be wholly resorted to in order to designate the premises. When the agreement itself fails to identify the property, or to furnish the means by which it may be done, by pointing to some extrinsic fact by whose aid the ambiguity may be removed, to allow parol evidence to explain what was intended, would be to allow the entire consideration of a contract in relation to lands, on the part of the person conveying the property, to be proved by parol, and render useless and nugatory the above provision of the statute of frauds.

Judgment affirmed, with costs.

(5 Mont. 502)

EDDY and others v. KENNEY and others.

Filed January 13, 1885.

CHATTEL MORTGAGE-MORTGAGOR AND MORTGAGEE-GENERAL CREDITORS. A chattel mortgage containing a provision that the property mentioned should remain in the possession of and under the control of the mortgagors until the maturity of the instrument it was intended to secure, and containing conditions that the mortgagors should not dispose of said property, or remove the same, or suffer the same to be done, or allow the same or any part thereof to be taken from their possession by legal process or otherwise, and providing that any violation of these conditions should authorize the mortgagees and their assigns to take immediate possession of the property and hold the same, held to be valid and legal, and to protect the property included in the mortgage against the claims of the general creditors of the mortgagors. Appeal from Second district, Missoula county.

Robinson & Stapleton, for appellants.

Woody & Marshall, for respondents.

WADE, C. J. This is an appeal from a judgment in favor of the respondents, rendered on the pleadings. The complaint alleges that on the twelfth day of January, 1881, Morrison & Riggs were indebted to the respondents in the sum of $885.40 upon a certain promissory note executed by them on that day, payable to the order of the respondents on or before the first day of January, 1882, together with interest thereon at the rate of 2 per cent. per month from the first day of March, 1881, until paid; that, to secure the payment of said note according

to the tenor thereof, said Morrison & Riggs executed to the respondents a certain indenture of mortgage upon, among other property, the personal property described in the complaint, conditioned for the payment of said note when the same became due, which mortgage was duly acknowledged and recorded; that on the twelfth day of February, 1881, the defendant Edwin A. Kenney, sheriff of Missoula county, at the instance and request of the defendants Albert Kleinschmidt and Reinhold Kleinschmidt seized and took into his possession, all the personal property described in the complaint and included in said mortgage upon a writ of attachment issued in an action by said Albert and Reinhold Kleinschmidt against said Morrison & Riggs, and that said property so seized was of the value of $1,200; that on the twenty-seventh day of November, 1882, the respondents recovered a judgment and decree of foreclosure of said mortgage; that the property included in the mortgage, and not so seized on said attachment, was sold under and by virtue of said decree, upon which there was realized the sum of $577.90, leaving due and unpaid on said note and mortgage the sum of $1,020.85, for which sum the respondents asked judgment. A copy of the note and mortgage are attached to and made a part of the complaint. The defendant Kenney made default; and Albert and Reinhold Kleinschmidt filed their separate answer, and denied that the property mentioned in the complaint was of any greater value than $912, and justified their seizure of the property, and the sale of the interest of Morrison & Riggs therein under and by virtue of an attachment issued in their action against them, and a sale upon execution issued on a judgment in their favor against said Morrison & Riggs.

The defendants deny that they ever took said property, but admit, because they do not deny the allegation of the complaint, that Kenney, the sheriff, seized the property at their instance and request. There was a motion for a judgment, by plaintiffs, for the sum of $912, the value of the property as admitted in the answer, which motion was granted. The mortgage contained the following condition:

"And it is further agreed, by and between the parties thereto, that all the personal property herein mentioned and described shall be and remain in the possession of, and under the control of, the said parties of the first part, until the maturity of said promissory note, and default made in the payment of the same, upon the following conditions: That said parties of the first part shall not dispose of said property, or any part thereof; or remove the same, or any part thereof, from said Missoula county; or suffer the same to be done, or allow the same, or any part thereof, to be taken from their possession by legal process, or otherwise; and any violation of any of the foregoing conditions will authorize the said parties of the second part and their assigns to take immediate possession of the whole of said personal property and hold the same."

These conditions were valid and legal, and protected the property included in the mortgage against the claims of the general creditors. When any of the conditions were broken the title of the property vested in the mortgagees. And so, when the property was seized by