Cobb v. Chase

6 N.W. 300, 54 Iowa 253

Opinion

Adams, Oír. J.

i.mortgage; oriiFoíiiens. The question presented for our determination is whether, under the established facts, the mortgage should be regarded as delivered before the attaehment. The mere execution and filing of an instrument for record does not constitute delivery. Day v. Griffith, 15 Iowa, 104. The appellant, however, insists that the present case differs from that in two respects. In that case the antecedent agreement was merely that the mortgagor would give security, whereas in this case the agreement was to give security upon some cows and other stock. In this case too the mortgagor had knowledge of the mortgage before the levy of the attachment, whereas- in that case the mortgagor had no such knowledge.

Where a person agrees with another to mortgage to him specific property, and in pursuance of the agreement executes a mortgage upon the property, and files it for record, there is much reason for holding that such mortgage is to be deemed accepted by the mortgagor. But the agreement in this case was merely that a mortgage should be given upon a certain kind of property. No one specific piece of property was agreed upon, nor even the quantity. The agreement, then, was far less definite than the mortgage, and being so, we do not see how it could be construed as equivalent to an acceptance of the mortgage.

Nor are we able to see how mere knowledge of the mortgage, after it had been filed for record, could be deemed an acceptance of it. Acceptance involves the exercise of volition upon the part of the acceptor. Mere knowledge does not involve the exercise of volition.

Affirmed.