Page:North Dakota Reports (vol. 48).pdf/444

 constitutional questions have been presented or decided in this action. The action accordingly should have been dismissed.

It is so ordered, without costs.

,, and , JJ., concur.

, C. J., concurs in the result.

CHRIST MOEN and STEPHEN FAUST, Respondents, v. KILZER LUMBER COMPANY, Appellant.

Chattel mortgages-creditor attaching engine prior to filing of purchase-money mortgage held not subsequent creditor in good faith.

For the conversion of a Case engine plaintiffs bring this action and recover a judgment for $400. and costs. The plaintiffs claim under a chattel mortgage. Defendant claims under an attachment which was levied prior to the filing of the mortgage. The attachment was for a debt which existed prior to the execution of the mortgage. Hence the lumber company is not a subsequent creditor in good faith and its claim does not take precedence over the mortgage. Judgment affirmed.

Appeal from the District Court of Dunn county, Berry, J.

Affirmed.

T. F. Murtha and H. L. Malloy, for appellants.

It is plain that the mortgage should not have been received for record by the Register of Deeds of Dunn county. The recording of said mortgage did not constitute constructive notice of defendants. Pease v. Magill, 17 N. D. 166. (cit. 167).

"Defendant's chattel mortgage was not properly witnessed or acknowledged so as to entitle it to be filed; and hence the filing of the same did