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 nesses left the territory of Dakota two days before the mortgage was executed, and did not afterwards return, held, that the court erred in refusing to submit to the jury the question of the proper execution of the mortgage.

3. The testimony of a witness whose only knowledge of the value of a certain article on a certain date is derived from inspection of an entry written in pencil in the day-book of a party in no manner connected with the action, where it is not shown by whom such entry was made or when it was made, or that the party making it had any knowledge of the market value of such articles, is not competent to establish the value of such article.

(Opinion Filed March 12, 1891.)

APPEAL from district court, Cass county; Hon. WILLIAM B. MCCONNELL, Judge.

Pollock & Young, for appellant. Ball & Smith, for respondent.

Action by plaintiff, as mortgagee, against defendant, as sheriff of Cass county, to recover value of wheat seized and sold by defendant under execution. Judgment for plaintiff. Reversed and a new trial ordered.

Pollock & Young for appellant:

The mere signing of a mortgage, coupled with the fact that the same found its way into the office of the register of deeds, does not constitute a delivery. Jones on Chat. Mortg., § 106; Day v. Griffith, 15 Iowa 104. The question of delivery is always a question of fact for the jury. Jones on Chat. Mortg., § 112. There being no delivery of a mortgage, it is absolutely void as to third parties. Compiled Laws North Dakota, § 3229. The mere knowledge of the mortgagee that mortgages in his favor have been filed is not sufficient to constitute an acceptance by him. Jones on Chat. Mortg., § 108; Cobb v. Chase, 54 Iowa 253, 6 N. W. Rep. 300; Parmelee v. Simpson, 5 Wall. 81. The validity and identity of the note, whether or not payments were made thereon, which saved the cause of action on the note from being barred under the statute of limitations, and the making, delivery, filing and acceptance of the chattel mortgage, were questions of fact for the jury and not of law