Page:North Dakota Reports (vol. 12).pdf/48

2 Evidence to Vary Terms of Mortgage—Common Law and Statute. 2em

Extraneous Agreements Discharged by Delivery. 2em

Previously Executed Note—Sufficiqnt Consideration. 2em

Defense of Failure of Consideration—Evidence to Vary Written Instrument. 2em

Nondelivery—Parol Evidence.

2em

Appeal from the District Court, Grand Forks county. Fisk, J.

Action by F. S. Sargent, as receiver of the Security Trust Company, against John E. Cooley and Minnie E. Clifford. Judgment for defendants, and plaintiff appeals.

Reversed.

Templeton & Rex, for appellant.

Proof to break down a mortgage must be “clear, satisfactory and specific, and of such a character as to leave in the mind of the Chancellor no hestitation or substantial doubt.” McGuin v. Lee, 10 N. D. 160, 86 N. W. 717.

Under the statute of this state, “A grant cannot be delivered to the grantee conditionally. Delivery to him, or his agent, as such, is necessarily absolute; and the instrument takes effect thereupon, dis