for the court. Compiled Laws North Dakota, § 5032; Koehler v. Adler, 78 N. Y. 287; Hibbard v. Smith, 4 Pac. Rep. 473, 8 Pac. Rep. 46; Railroad Co. v. Stout, 17 Wall. 647; Bank v. Dana, 79 N. Y. 108.
Ball & Smith for respondent:
The question of delivery is a question of fact for the jury, but under the evidence in this case, if the question had been submitted to the jury, and the jury had found that no delivery of the mortgage had ever been made, it would have been the duty of the court to set aside the verdict as unsupported by the evidence, and in hostility to all evidence given. Town of Grand Chute v. Winegar, 15 Wall. 355. The question whether a mortgage is properly executed and acknowledged is one of law to be passed upon by the court. Jones on Chat. Mortg., § 112. The testimony of a witness as to market value is not incompetent if it is derived from inquiry in the trade or from invoices and accounts. Greely v. Stilson, 27 Mich. 153; Alfonso v. United States, 2 Story 421; Lush v. Druse, 4 Wend. 313.
The opinion of the court was delivered by
BARTHOLOMEW, J. Sections 4388 and 4389 of the Compiled Laws provide that, before mortgaged chattels can be taken on execution against the mortgagor, the officers holding the writ must pay or tender to the mortgagee the amount of the mortgage debt, or deposit such amount with the county treasurer, payable to the order of the mortgagee. The respondent, as mortgagee, brought an action against the appellant, as sheriff of Cass county, to recover the value of certain property seized and sold by appellant under execution against one Donald E. Keith, and upon which the respondent claimed to hold a valid mortgage given by said Donald E. Keith to him, and which sale was made without compliance with the statute above mentioned. The issues were upon the validity of the mortgage and the value of the property. It was undisputed that the execution plaintiffs were creditors of the mortgagor at and prior to the time of the execution of the mortgage under which respondent claimed. No questions arise upon any other notice than
