Page:North Dakota Reports (vol. 3).pdf/234

 Appeal from District Court, Ransom County; Lauder, J.

Action of replevin by the Union National Bank of Oshkosh against T. N. Oium, as sheriff of Ransom County, and another. There was judgment for defendants, and plaintiff appeals.

Reversed.

Ball & Watson and Rourke & Allen, for appellant.

No valid levy of attachment was ever made upon the engine and separator and some of the plows claimed to have been attached, as they-were not present nor in the view of the sheriff at any.time. Rogers v. Bonner, 45 N. Y. 379; Bond v. Willett, 31 N. Y. 102; Ray v. Harcourt, 19 Wend. 495; Brown v. Pratt, 4 Wis. 513; Dresser v. Ainsworth, 9 Barb. 619; Crocker on Sheriff's § 436-7; Freeman on Executions § 262. When the possession of attached property is voluntarily abandoned by the custodian and it comes into the possession of any one claiming adversely to the attaching officer, the lien of the attachment is lost. Wade on Attachments § 164; Sanderson v. Edwards, 16 Pick. 144; Boynton v. Warren, 99 Mass. 172; Littleton v. Wyman, 28 N. W. Rep. 582; Nichols v. Patten, 36 Am. Dec. 713; Hardon v. Lissen, 36 Il. App. 383: Russell v. Mayor, 29 Mo. App. 167. The engine, separator and certain plows to which the court found that the lien of plaintiffs mortgage did not attach, because of the fact that at the time of the execution of the mortgage they were not on section 19, have since the delivery of such mortgage come into the possession of the mortgagee, and possession equally with filing is notice to all persons of the mortgagees interest in mortgaged property. Gooding v. Riley, 50 N. H. 400; Clark v. Tarbell, 57 N. H. 328; Jones on Chattel Mortgages, § 176; Morrow v. Reed, 30 Wis. 81, Janvrin v. Fogg, 49, N. H. 340. The taking of possession by the mortgagce of the mortgaged property before any other right or lien attaches, the title obtaincd under the mortgage is good against everybody, although it be not acknowledged and recorded ‘or the record be ineffectual by reason of any irregularity. The taking of possession is an indentification and appropriation of