Page:North Dakota Reports (vol. 48).pdf/69



Appeal from the District:Court of Mercer County; Lembke, Judge. Remanded.

Thorstein Hyland, for appellants.

It is not necessary to file certified copies in another state.

Wilson v. Rustad, (N. D.) 75 N. W. 260 and cases cited; Keenan v. Stenson, Minn., 20 N. W. 364 and cases cited.

The new note was not a payment of the instrument in absence of an agreement to that effect.

7 Cyc. and cases cited; Wirtz v. Wolter, 32 N. D. 364.

Norton & Kelsch, for respondent.

, Ch. J. On September 15th, 1917, at Selfridge, in Sioux County, North Dakota, Frank Winmill and J. C. Sweeney made to the plaintiff a promissory note for $1500, due November 15th, 1917, and to secure payment of the same made to the plaintiff a mortgage on twenty aead of horses and mules. On September 28th, 1917 the same was filed in the office of the Register of Deeds of Sioux County. The plaintiff avers that only $160 has been paid on the note, and for the balance, $1340, it brings suit and demands a foreclosure judgment. For this $1340 Winmill and Sweeney gave a renewal note dated December 28th, 1918, due in six months. The bank did not give up the original note because it was not in its possession. Defendants, by answer, avers that the $1340 note has been fully paid and that the Stanton Bank has three unpaid mortgages which are a prior lien on the animals, and that the plaintiff had actual or constructive notice of the same. The trial court found in favor of the plaintiff and adjudged a foreclosure for $1340, and interest, and defendants appeal.

The case presents two questions: (1) Has the $1340 mortgage been paid? (2) Did the plaintiff take its mortgage with actual or constructive notice of the prior mortgages? On December 12, 1916 Frank Winmill made to-the Bank of Stanton a promissory note for........................ $500.00 On December 12, 1916 a note fOF........2.......:ce2eceeceeeseeeceeeeecseeeeeeeeeses 266.00 On August 5, 1917 a note for... ee eee cee ee cee cece ceeeeeeee 400.00

The notes were secured by mortgages duly filed in the office of the Register of Deeds of Mercer County, where the mortgagor resided and