Page:North Dakota Reports (vol. 48).pdf/70

 where the property was situated. As the mortgage to plaintiff was made on September 15th, 1917, the mortgages to the Bank of Stanton were prior in time and presumably prior in right. In July of 1917 the mortgagors left Mercer county with the horses and mules, to buy, sell and put up hay in Carson county, South Dakota, and the Bank of Stanton filed in Carson county a certified copy of its mortgages. On the way to Carson county they sojourned a short time in Sioux county and arranged with the plaintiff bank to advance them money to buy, sell and put up hay, agreeing to ship the hay to the plaintiff bank from Tuttle, South Dakota. So on December 28th, 1917 Winmill and Sweeney made the $1500 mortgage. It is on a printed form which reads thus: “All that certain personal property situated on-............ of Section............ Township............ Range cecseeeseees in Sioux county, North Dakota, now in my possession and owned by me and free from all incumbrances.” The property is described thus: “20 head of horses and mules of all sizes, ages and descriptions, being all the horses and mules we own.” But in truth, when the mortgage was made, the property was in Carson county, South Dakota, which is south of the state line. Such being the facts, this court holds that the liens of the Stanton Bank were prior in time and prior in right and superior to the liens of the plaintiff.

On the question of payments the pleadings and the evidence are very detective and unsatisfactory. While the answer avers that the $1500 mortgage is fully paid, it does not state the time, means or manner of payment, and the evidence of payment was left so unsatisfactory that the trial court declined to consider it holding that the remedy of the mortgagors was to bring an action for an accounting. However, it does appear that the plaintiff bank was a kind of partner with the mortgagors in the hay business and it loaned them the money to buy and put up hay and all the hay was put on the railway cars and bills of lading taken in the name of the plaintiff and delivered to it, and it received and sold all the hay. Tn some manner, either for cash or on time, the plaintiff has sold all the hay and received the proceeds and under the evidence it does seem that the plaintiff has been fully paid, if not overpaid. However, as the trial court did not pass on the question of payment, and as it is not fairly presented by the pleadings, this court will not attempt to determine it. The trial court should have directed the pleadings to be amended and should have determined the question of payment or counterclaim without giving the piaintiff the benefit of a judgment and execution and turning the de-