Page:North Dakota Reports (vol. 48).pdf/378

 township and range. The iwner of the land described in the mortgage was J. Olson, who was also the president of the plaintiff and appellant bank. Gobernatz was his tenant. During the fall of 1918 Gobernatz delivered certain grain to the Olson-Warner Grain Company at Burlington, for which payment was made to Olson, the landlord. He also turned over to the appellant, the personal property on the farm without seizure under foreclosure proceedings. Some of this was disposed of by the appellant and the remainder was still in its hands at the time of the trial. During the fall of 1918 Gobernatz sold and delivered to the defendants herein, at Glenburn, 559 bushels and 30 pounds of wheat, for which the latter paid the market price. It is this wheat that is the subject of the present controversy.

The respondents justify the judgment of the trial court dismissing the action upon several grounds. It is contended: (1) That the evidence is insufficient to identify the grain purchased by the defendants as grain raised upon the west half of sec. 5, township 157, range 83, covered by the appellant’s mortgages; (2) that the mortgages were not entitled to be filed under chap. 108, Session Laws of 1917, on account of their form; and (3) that the evidence fails to show the receipt by the mortgagor of copies of the mortgages at the time they were executed. After a careful examination of the record we find it unnecessary to consider any question other than the first, viz. that the evidence does not identify the wheat Gobernatz sold to the defendants as the wheat covered by, the appellant’s mortgages.

The nearest approach to evidence of the identity of the grain sold to the defendants is that of one Warner, an officer of the plaintiff bank. He testified that during the season of 1918 he was out to Gobernatz’s place a number of times; that he was familiar with his farming operations, and knew what land he put into crops; and that he seeded and raised oats on the northeast quarter of sec. 6, which, he stated, was the only land he farmed, aside from the half section covered by the crop mortgages in question. He stated that he did not know, of his own knowledge, where the wheat, aside from that delivered to the Burlington elevator, was hauled to, or where any of the grain hauled by Gobernatz came from. We are of the opinion that this evidence is not sufficient to sustain the plaintiff's burden of proving that the defendants purchased the grain covered by the plaintiff’s mortgages.

The sale of the mortgaged grain to the defendants would have involved