86 N.W. 718 | N.D. | 1901
The complaint states a cause of action for the foreclosure of a chattel mortgage given, with several notes accompanying it, on August 17, 1898. Only two of the notes are involved in this suit, — one for $300 and one for $416. The others have been paid. The answer sets forth as a defense that the mortgage and notes were given in consideration of the sale by the plaintiff to the
The only question of law urged by the appellant in his brief is that the plaintiff failed to prove that the mortgage admitted in evidence was properly executed! He claims that it is necessary to prove that the signing of the mortgage by the; defendant was duly witnessed, and cites as authority for such a contention the case of Keith v. Llaggart, 2 N. D. 18, 48 N. W. 432. That case is not in point. In' that case the rights of third parties were involved. There can be no doubt that the formality of witnessing the execution of a mortgage is not contemplated by the statute, except as a prerequisite to filing, in order that it may become constructive notice to incumbrancers or purchasers of the property mortgaged. See § § 4733, 4738, Rev. Codes; Jones, Mortg. § 532. See, also, Machine Co. v. Lee, (S. D.) 57 N. W. 238, where this identical section (4738) is considered.
The trial court refused to find, on the request of defendant’s attorney, that the plaintiff agreed to release said Olson from all liability on account of such notes and chattel mortgage, and that it agreed to accept said Anderson as the one responsible for the payment of them, in place of said Olson. It is claimed that the evidence sustains such a finding, and that it does not sustain any finding to the contrary. It is, therefore, necessary for us to review the evidence in order to determine what the truth is as to this contention. The facts briefly outlined, are thát defendant and Anderson operated the threshing rig in partnership in the fall of 1898, and bought the rig as partners, although Anderson’s name did not appear in the notes or mortgage. In the summer of 1899 Olson desired to sell the outfit to Anderson. Anderson and Olson saw the plaintiff’s agent in regard to consenting to such a sale, and were informed that “it would be all right.” Two weeks .later Olson sold the machine to Anderson. After this sale they went to Fargo- to see the plaintiff’s agents. They then informed such agents that Anderson had bought the rig. Anderson here guaranteed the payment of the note to become'due that fall by an indorsement on 'the back of it. Anderson does not claim that Olson was ever released from payment of the note or notes, but says there was talk concerning it at this interview. Olson says, in testifying on cross-examination as to this interview: “When Anderson and I came to the Case office together, I asked them to fix up the deal with Anderson, and take his notes, and give me mine. They would not do it.” In' other parts of his evidence he testifies to the