Page:North Dakota Reports (vol. 2).pdf/47

 the constructive notice given by the record. Section 4379, Comp. Laws, is as follows: "A mortgage of personal property is void as against creditors of the mortgagor, and subsequent purchasers and incumbrancers in good faith for value, unless the original, or an authenticated copy thereof, be filed by depositing the same in the office of the register of deeds of the county where the property mortgaged, or any part thereof, is at such time situated." Respondent's mortgage was on file in the proper office, but appellant contended that it was not legally entitled to filing, because not witnessed as required by § 4384, Id., which reads as follows: "A mortgage of personal property must be signed by the mortgagor in the presence of two persons, who must sign the same as witnesses thereto, and no further proof or acknowledgment is required to admit it to be filed." Appellant also claimed that the evidence failed to show any delivery of the mortgage to or acceptance thereof by the mortgagee prior to the levy under the execution.

The appellant requested the court to give the following instructions to the jury: "The law of this territory provides that a mortgage of personal property must be signed by the mortgagor in the presence of two persons, who must sign the same as witnesses thereto; and I charge you that if you should find from the evidence that the mortgages introduced in evidence, and under which plaintiff claims to recover in this action, were not signed by D. E. Keith in the presence of the two witnesses who purport to have signed their names as witnesses to said mortgages, and each of them, or if you find that the man E. J. Emmons, whose name appears as a witness to each of said mortgages, did not sign his name thereto, the mortgages are, and each of them is, void as against creditors, notwithstanding the plaintiff, J. G. Keith, may have been an innocent party, and had no knowledge of the fact surrounding the execution of the mortgages; and the fact that they were filed in the office of the register of deeds in this county would not in any way affect them, for the reason that, if not properly executed as required by law, they were not entitled to be filed." This the court refused, and gave the following: "The defense is as to two matters: First. There is a denial of the execution of this chattel