Page:North Dakota Reports (vol. 2).pdf/44

 dence negatives such knowledge. In the case at bar nothing appears that can stand in the way of holding that the purchaser in buying this wheat lawfully acquired the title to the same, subject to the lien of the mortgage thereon. An action will not lie against such a purchaser without a demand and refusal before suit, except where there has been a conversion of the property, or where a claim of title adverse to the mortgagee's right of possession has been pleaded by the defendant. We hold that the trial court erred in refusing to direct a verdict for defendant, and in refusing to charge the jury upon the law governing the conversion of chattels. For these errors the judgment will be reversed, and a new trial granted. All concur.

JOHN G. KEITH, Plaintiff and Respondent, v. JOHN E. HAGGART, Defendant and Appellant.

Chattel Mortgage-Record-Priorities-Execution-Evidence.

1. Where the undisputed evidence shows that a creditor requested security from his debtor, and the debtor promised, by letter, to give security, but mentioned no property upon which such security would be given, and subsequently a chattel mortgage from the debtor to the creditor was filed in the proper office, and the creditor at once notified by the debtor of such filing, and the creditor accepted such security, and procured a certified copy of the mortgage, held, as between the mortgagee and an execution creditor of the mortgagor whose lien on the property did not attach until months after the mortgage was filed, that there was no question as to delivery and acceptance of the mortgage to be submitted to the jury.

2. In an action between the mortgagee and the representative of a creditor of the mortgagor whose debt existed prior to the execution of the mortgage, where it was claimed that the mortgage was void under the statute as against the creditor, because not properly witnessed, and therefore not entitled to record, where the only evidence that the mortgage was witnessed by the parties whose names appeared thereon as witnesses came from a witness against whom the other party introduced impeaching testimony, and where the evidence also tended to show that one of the parties whose names appeared as wit-