CAPITAL om! BANK v. novo1N. 3
held that a delivery would be held to have taken place because it had
been agreed that the mortgagor was to select the property to be mort-
gaged, and was to deliver the mortgage to the recorder.
In the case now before the court the agreement between Mrs. Hodgin
and her son was that a mortgage was to be executed upon his return
to Des Moines upon his stock in trade kept in his store at Des Moines.
And this was the identical property included in the mortgage. The
facts in this case tend more strongly to prove a delivery and accept-
ance of the mortgage than those held sufficient in Everett v. Whitney.
Many cases hold that the passing of a deed or mortgage from the
actual control of the grantor into the hands of a third party, the con-
veyance being beneficial to the grantee, raises a presumption of de-
livery and acceptance. Tompkins v. Wheeler, 16 Pet. 118; Robinson
v. Gould, 26 Iowa, 89; Mitchell v. Ryan, 3 Ohio St. 377.
As it appears from the evidence that the mortgage to Mrs. Hodgin
was executed in pursuance of a previous agreement, and that she has `
recognized its validity by taking possession of the property under it,
there can be no question that it is binding and in force between the
mortgagor and the mortgagee; and that, as between them, it took ef-
fect at the time it was delivered to the recorder. The bank holds
under a mortgage, which it clearly appears was intended by the mort-
gagor to be subject to the mortgage executed to Mrs. Hodgin. When
knowledge of the execution of the mortgage to the bank was given to
the omcers of the bank, they knew that a mortgage had been executed
to Mrs. Hodgin, and filed for record the day before the filing of the
one to the bank. This was notice to the bank that the mortgage to
it was intended to be the second lien upon the property. The bank
was not bound to accept this mortgage. Had it refused to accept
the second mortgage, and obtained a lien, by attachment or execution,
upon the property, it could then have presented the question of its
rights as against the mortgage to Mrs. Hodgin, upon the theory that
it had acquired a lien upon the property before a complete delivery
of the mortgage to Mrs. Hodgin. Instead of so doing, however, the
bank accepted the mortgage, and claimed only the rights conferred
thereby. · '
The evidence shows that the mortgagor intended to create a second
lien upon the property by the delivery of the mortgage to the bank.
There is nothing disclosed in the evidence which creates an equity in
favor of the bank as against Mrs. Hodgin, and consequently there is-
nothing which would justify the court in defeating the intent of the
mortgagor in the execution of the two mortgages. The mortgagor in-
tended to give the first and paramount lien to Mrs. Hodgin. She has
accepted the mortgage as executed, and taken possession of the prop-
erty under it. The mortgagor intended to create a second lien upon
the property in favor of the bank, and with that intent executed the
second mortgage. The bank has accepted the mortgage, and, under
the facts of the case, must be held to have accepted it as it was in-