2 FEDERAL nmrourmn.
such liability. About the nrst of November, 1883, F. L. Hodgin vis-
ited his mother at her home in Ohio, and she testifies that on that
occasion it was agreed and-understood that, upon the son’s return to
Des Moines, he should execute to her a chattel mortgage upon the
stock of goods then owned by the son, and kept in the store at Des
Moines. The business at Des Moines had originally been carried on
by Robert and Frank L. Hodgin, under the firm name of Hodgin
Bros.; but, during the summer of 1883, Robert withdrew from the
firm. The indebtedness of the Capital City Bank was for money bor-
rowed and used ·in the businessof the firm; and it appears from the
evidence that the president of the bank had been assured that, in case
of need, the bank should be protected by the execution of a mortgage »
upon the stock.
On the twelfth day of November, 1883, F. L. Hodgin signed two
mortgages covering the stock: one to his mother, and the other to the
bank. He instructed his attorney, who drew up the instruments,
that he wished to give his mother the preference, by giving her the
first lien upon the property. The attorney informed him that this
could be done by recording the mortgage to the mother before the one. »
to the bank. The mortgage to Mrs. Hodgin was accordingly taken
by the attorney to the recorder’s office the afternoon of the twelfth of
November, and filed for record. And on the next morning, the mort- 4
gage to the bank was, in like manner, filed for record. At the time
of the signing and filing for record of these instruments, neither of
. the mortgagees knew of the signing of the same. On or about the
fourteenth of. November, 1883, the president of the bank, having
learned of the execution of a mortgage to the bank, sent one of the
employes of the bank to the recorder’s office to make inquiry con-
cerning the same; and the recorder informed him that two mort-
gages had been filed: one to Mrs. Hodgin, and one to the bank. A
few days after the recording of the mortgage to Mrs. Hodgin, she was
informed by letter of its execution, Upon part of the complainant,
it is claimed that neither mortgage took effect until a complete deliv-
ery had been made to the mortgagee; that, under the doctrine laid
down in Cobb v. Chase, 54 Iowa, 253, S. C. 6 N. W. Rep. 300, the
fact that the mortgage was recorded for the benefit of Mrs. Hodgin,
A and knowledge of its execution communicated to her, would not, with-
out ailirmative action upon her part, amount to an acceptance of the
instrument, so as to complete the delivery of the mortgage.
In the case of Cobb v. Chase it appeared that there was an agree-
ment that a mortgage should be given upon a certain kind of prop-
erty, to-wit, live-stock, but the number, nor the specified animals, was
not agreed upon; and under this state of facts the supreme court held
that the previous agreement could not be construed as equivalent to
an acceptance of the mortgage.
In the case of Everett v. Whitney, 55 Iowa, 146, S. C. 7 N. W.
Rep. 4:87, a similar question came before the same court, and it was