Page:North Dakota Reports (vol. 2).pdf/49

 No property was mentioned upon which security was to be given, but respondent knew that Donald could give only chattel security. On December 21, 1883, the register of deeds of Cass county placed on file in his office a chattel mortgage from Donald to respondent. How the mortgage reached the register is not shown. Under the authorities it is clear that the delivery to the register under these circumstances did not constitute delivery to the mortgagee, as against third parties whose rights accrued before the mortgage was in fact accepted. Cobb v. Chase, 54 Iowa 253, N. W. Rep. 300; Wadsworth v. Barlow, 68 Iowa 599, 27 N. W. Rep. 775; Dole v. Bodman, 3 Metc. (Mass.) 139; Thayer v. Stark, 6 Cush. 11; Maynard v. Maynard, 10 Mass. 456. Appellant seeks to bring this case under the above line of authorities, but the undisputed testimony of plaintiff when on the stand shows that he was advised by the maker of the mortgage of the fact that it was made and filed, about the time it was filed, and that he accepted the same, and received a certified copy of the mortgage. The executions were not levied until August 21, 1884. Under these facts we think the court was correct in holding that there was no question of delivery and acceptance to go to the jury.

But in refusing to give the instruction asked, and in holding that the mortgage was in all respects a valid, subsisting mortgage as against existing creditors, the court erred. The appellant had the right, under the evidence, to have the jury say whether or not the mortgage was in fact witnessed by the parties whose names appeared thereon as witnesses. There was no evidence in the case except that of Donald E. Keith, and no fact or circumstance tending to show that the mortgage was executed in the presence of and witnessed by E. J. Emmons. The mortgage was dated December 19, 1883. Donald testified that he thought it was executed on the day of its date; that he filled out the mortgage on his farm, and signed it in the presence of Mr. Street and Mr. Emmons, who signed as witnesses, and his wife; that Mr. Emmons was his wife's brother, and resided in another state, but was visiting at his place; and that when Emmons returned home his (Keith's) wife went with him. The other witness to the mortgage (Mr. Street) was living a the time in