Page:North Dakota Reports (vol. 2).pdf/48

 mortgage, and then a contention as to what the value of the property was; but I do not deem the evidence of the defendant sufficient to impeach the mortgage, and therefore I instruct you that the evidence is sufficient in this case to show that this was a valid and existing mortgage, and that it covered this property, and therefore it narrows the inquiry down in your minds to one of the identity of this property, which is not disputed, and as to its value." The ruling of the court in refusing the instruction asked, and in giving the instruction quoted, makes it necessary for us to discuss a portion of the evidence. This discussion will be better understood after a preliminary statement. The respondent, John G. Keith, was a resident of Chicago. Donald E. Keith, the mortgagor, was his brother, and resided in Cass county, in the territory of Dakota. Donald was a witness for the respondent before the jury. An effort was made to impeach his testimony. Four witnesses, after showing themselves to be properly qualified, testified to his bad reputation for truth and veracity. No effort seems to have been made to contradict or modify the impeaching testimony. On this subject the court instructed the jury as follows: "If you believe from the evidence that the witness, D. E. Keith has been successfulysuccessfully [sic] impeached on this trial, or that he has willfully sworn falsely as to any matter or thing material to the issue in this case, then the jury are at liberty to disregard his entire testimony, except in so far as it has been corroborated by other creditable evidence, or by the facts and circumstances proved on the trial."

Turning now to the points raised by the assignment, it appears by undisputed and unquestioned evidence that Donald E. Keith was indebted to respondent in 1874, and at that time gave respondent his promissory note for the amount due January 1, 1880. Nothing was paid on this note, although there was usually an open account between the brothers. In 1883 the note was indorsed by the payment of interest to that date, being the amount found due to Donald upon a settlement of the account. During the year 1883 respondent requested Donald to give him some security for the debt, and Donald promised, by letter, to do so.