The case is this: A man owns a farm and eleven mules. He leases the farm and the mules. The lease provides that upon its termination the lessee “is to return the said personal property in as good condition as it now is, or its equivalent in kind,” etc. Five of the mules die before the termination of the lease or are otherwise disposed of by the lessee, but said lessee purchases five other mules which he uses upon the farm prior to the termination of the lease. Thereafter the lessee executes a mortgage to the defendant on “fifteen mules and one mare, all now in my possession,” and at the time of the execution of such mortgage said lessee had more than fifteen mules in his possession, although not in the same county.
Upon the foregoing facts two questions of law arise:
(1) Was the mortgage of the mules to the defendant void for uncertainty of description?
(2) Does the plaintiff have such title to the five mules subsequently purchased by the lessee, as to maintain this action?
The parties agreed at the time the mortgage was executed that the mortgagor “was in possession of more than fifteen mules, including mules in his possession on his farm in Chowan County, but had in his possession only thirteen mules on the Princeton farm,” etc. The description of the property in the mortgage does not identify or except it from the mass, and, therefore, this phase of the case falls within the principle heretofore announced in Blakely v. Patrick, 67 N. C., 40; Atkinson v. Graves, 91 N. C., 99; McDaniel v. Allen, 99 N. C., 135, 5 S. E., 737; Moore v. Brady, 125 N. C., 35, 34 S. E., 72.
The general proposition of law contained in the foregoing cases is expressed in Atkinson v. Graves, supra, as follows: “It is defective in the further particular that it does not designate and identify the property sought to be conveyed, so that it could be separated from other property of like kind raised by the mortgagor. ... It is' quite as uncertain, if not more so, as the mortgage of Ten new buggies/ out of a lot of fifteen buggies, which was held to be void for uncertainty; *830. . . or twenty sheep in a flock of one hundred; or ten head of cattle in a drove of fifty; or a thousand feet of saw-logs in a certain river, without further description to distinguish them from a much larger mass of logs belonging to the mortgagor in the same river, which is held to be void for uncertainty.”
The defendant relies upon the case of Dunkart v. Rineheart, 89 N. C., 354, but it must be observed that the description of the trees involved in that case contained certain dimensions which tended to set them apart and mark them out from all other walnut trees on the land.
Nevertheless, it does not appear from the agreed facts that the five mules were purchased by A. M. Forehand as agent of the plaintiff in order to replace the five mules that died or were otherwise disposed of as required in the rental agreement. The parties merely stipulate that “the other six mules . . . having been acquired and placed on the farm by A. M. Forehand since the execution of the rental agreement,” etc. Did A. M. Forehand acquire and place these mules on the farm in compliance with the terms of the rental agreement “to return the said personal property in as good condition as it now is, or its equivalent in kind?” Obviously, if A. M. Forehand bought six mules after the rental agreement, not as agent or on behalf of the plaintiff, or with the intention of replacing plaintiff’s mules as “equivalent in kind,” then the plaintiff would not have such title as to be able to maintain a suit for the’ proceeds of the sale of such mules. As the parties have agreed to the facts, this Court must take them as it finds them, and, as we interpret the record, it does not disclose that the plaintiff had title to these five mules, and, therefore, he cannot maintain the action.
Reversed.
ScheNCk, I., took no part in the consideration or decision of this case.