Page:North Dakota Reports (vol. 2).pdf/38

 in the cases cited the evidence showed affirmatively that the defendants had converted the grain-in one case by selling it, and in both cases by mixing it with their own grain, or with that of other persons, in a common mass. In the case at bar there is no such showing. On the contrary, the evidence tends to show that the grain is in the defendant's elevator, and there is not a scintilla of testimony that defendant had mixed it with other grain, sold it, or done any other act adverse to plaintiff's rights as mortgagee. Defendant received the grain into its elevator, issued wheat tickets therefor in the name of the mortgagor, who delivered the wheat, and, on direction of the mortgagor so to do, delivered the tickets to defendant Bell, who claimed the wheat. Defendant also cashed the tickets so issued and delivered. No fraud is alleged or shown. The transaction is a sale of personalty, accompanied by delivery, made by a mortgagor of mortgaged property, before the debt is paid. The mortgage contained the usual covenants, as follows: "If default shall be made in the payment of said sum of money, or the interest thereon at the time said note shall become due, or if any attempt shall be made to dispose of or injure said property, or to remove said property from said county of Ransom, or any part thereof, by the mortgagors, or any other person, or if said mortgagors do not take proper care of said property, or if said mortgagee shall at any time deem himself insecure, then, thereupon and thereafter it shall be lawful, and the said mortgagors hereby authorize said mortgagee, his executors, administrators, or assigns, or attorney, or authorized agent, to take said property wherever the same may be found, and hold or sell and dispose of the same," etc. The mortgage further stipulates that “that the said mortgagors hereby waive demand and personal notice of the time and place of sale; and, as long as the conditions of this mortgage are fulfilled, the said mortgagors to remain in the peaceable possession of said property." It is conceded that the debt was due and unpaid when the grain was put in the elevator; also that such fact, as well as the act of disposing of the grain, would operate to authorize the mortgagee to proceed to take possession and foreclose the mortgage in accordance with the law. Appellant contends that the mortgagee