Page:North Dakota Reports (vol. 1).pdf/156

 mortgage, and having assumed the same, and the mortgagee therein, the plaintiff in this action, being without satisfactory evidence of his mortgage lien, it was agreed that McKnight should give this plaintiff another mortgage on the land as a substitute for the lost mortgage, “and to stand in place thereof, and to evidence the existence thereof.” This new mortgage was not given or received in satisfaction of the lost. mortgage. This mortgage was in the ordinary form, to secure $4,815, and contained no reference to the lost mortgage; nor was there anything on the face of it to show that it was given merely as a substitute for such lost mortgage. It in fact appeared to be a new and independent lien on the property. It is under the foreclosure of this mortgage that plaintiff claims title. At the same time, and as part of the same transaction, plaintiff executed and delivered to McKnight an instrument which was recorded August 11, 1884, and, as the decision of this cause depends in the main upon the construction of this paper, we deem it best to set it forth fully: “I, Edwin Morris, mortgagee, do hereby certify that a certain indenture of mortgage, bearing date the 20th day of June, in the year of our Lord one thousand eight hundred and eighty-one, made and executed by Salmon I. Beecher and Charles R. Dean, upon section seven, (7) township one hundred and thirty-nine (139) north, of range fifty (50) west, in the county of Cass, and territory of Dakota, and due on the 20th day of June, in the year of our Lord one thousand eight hundred and eighty-four. It is the intention of this instrument to satisfy a certain mortgage for forty-five hundred ($4,500) dollars, and bearing seven per cent. interest, given by Salmon I. Beecher and Charles R. Dean, on or about June 20th, 1881, to Edwin Morris, which said mortgage has been lost or mislaid; and I, Edwin Morris, mortgagee, guarantee Eugene V. McKnight, his heirs and assigns, against all loss or damage that may at any time be sustained by him, his heirs or assigns, by reason of said mortgage aforesaid, redeemed, paid off, satisfied and discharged. Dated the 14th day of July, 1884. Edwin Morris. [Seal.]”

The plaintiff at the time of accepting the new mortgage and executing this instrument did not in fact know of the existence