Page:North Dakota Reports (vol. 3).pdf/255

 to the doctrine that a subsequent chattel mortgagee for an antecedent debt is not protected as against an unfiled prior mortgage on the same property. The first mortgage may be withheld from record for a year, and yet one who was a creditor when it was given, and who has not since it was executed altered his position to his disadvantage, cannot, by taking a second mortgage on the property, although without knowledge of the unfiled lien, secure any priority, however long thereafter the first mortgage.is kept from record. If the mortgage in either case is kept from record for a fraudulent purpose, a different rule would apply. Nor do we think that one who takes security for an honest debt will care to risk that security by failing without reason to file it as required by law. There can be no pretense, under the facts of this case, that the attaching creditor refrained from taking steps to collect his claim because of the silence of the record. Only three days elapsed between the execution of the mortgage and the commencement of the action in which the property was seized. He was not stirred to action by discovering that a chattel mortgage had been given. Nor is there aught to indicate that he would have enjoyed any more advantageous position had the mortgage been filed the day it was given, and had he thereafter and on the same day commenced his suit and seize the property. It is said that, if the creditor whose claim accrues while the default in filing the mortgage exists is to be protected even after the mortgage is filed, he may wait two years, and then, by attaching, surprise the mortgagee, who will be injured because he has not anticipated that his lien could be so defeated. But is the innocent creditor who parts with his money on the strength of the mortgagor's credit—a credit frequently created because of his ownership of unincumbered property—to be debarred his right to rely on the’ silence of the record merely by reason of the filing of the mortgage before he can seize the property for his claim? Debts are seldom payable when incurred, and, if the subsequent filing of the unfiled instrument is to destroy the innocent creditor's right to protection, the greatest injustice will be done him; for it will