Beck, J.
insurance : against hScumtrances. It is contended by the counsel of appellant, that the policy was avoided by the mortgage, that the fact of the mortgage being unstamped, without an intent to evade the revenue laws, did not ren<jer it void, and that it was operative so far as to defeat the policy. The contrary view was taken by the District Court, and the jury was' so instructed. Whether this instruction is erroneous or otherwise we need not inquire. (See however Hugus v. Strickler, 19 Iowa, 414.) Without putting the case upon that ground, we unite in the opinion, that, under the evidence, the mortgage had not been delivered, and hence was not an incumbrance in any form. The court correctly instructed the jury on this point of law, and if they had found against plaintiff thereon, their verdict would have been so far contrary to the evidence that a new trial should have been allowed. This being so, the instruction objected to, even if erroneous, was error without prejudice.
Affirmed.
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