(after stating the facts as above). In addition to the statement made, an examination of the evidence in full in the case-made produces the conclusion that the district court, in sustaining the demurrer to plaintiff's evidence when he rested his case, did not commit error. It was affirmatively shown at the trial that plaintiff took no legal steps to foreclose his first mortgage, the one of January, 1907, and he had constructive notice, if not actual, of Roberts' mortgage, which was of record, and had such notice of the existence of Roberts' mortgage when he took back the property from the mortgagors regardless of the rights of Roberts, and he also had notice of Roberts' mortgage at the time he sold the same property to Bowman and took his mortgage in January, 1908; the plaintiff, himself, in his testimony, referring to the note given by Bowman and Davis, mortgagors, *Page 730 in January, 1907, saying that, while such note was not paid in money by Bowman and Davis, yet that:
"They turned their stuff back to me in November, 1907, and finished their business with me on that date, and turned the stuff back to me in lieu of what they owed me. In January after that, Bowman came and wanted to buy some of the property back and make a crop with me, and I sold him two horses and some other things."
Further on, in answer to this question, he said:
"Q. And about November, 1907, Bowman and Davis turned you back this property? A. Yes, sir. Q. In settlement that you (meaning plaintiff) and Mr. Bowman and Davis had at the time? A. Yes, sir; let it pay for itself. Q. And you accepted the property when it was turned back to you? A. Yes, sir. Q. And then again in January, 1908, you resold this property back to Mr. Bowman and took another mortgage? A. Yes, sir. Q. And in January, 1908, when you took a mortgage from Bowman and Davis the record shows that he (Roberts) had a mortgage on the property? A. Yes, sir. Q. And that is the same property in controversy in this suit? A. Yes, sir."
Section 5034, Ind. T. Ann. St. 1899, provides that a mortgage upon chattels creates a lien; and section 3070 of the same statutes provides the manner in which the lien shall be foreclosed. In the case at bar the plaintiff did not resort to foreclosure proceedings of any kind, but voluntarily canceled the obligation that he had, a first mortgage, and released it by accepting a settlement under it, which he testifies to, and this was done at a time when defendant's mortgage was alive and in force and, therefore, superior to his mortgage taken in January, 1908, after the one of the original mortgagors' upon the same property, he having kept the property in his possession after the settlement with his first mortgagors for about two months.
The case is too plain for further discussion, the facts being understood to exist as they do, and the district court did not commit error in sustaining the demurrer to the evidence relied upon by plaintiff when he rested his case. The authority cited by plaintiff, Wooster v. Cavender, 54 Ark. 153, 15 S.W. 192, in our judgment, is not applicable. The case of Edmisson v.Drumm-Flato Com. Co., 13 Okla. 440, 73 P. 958, presents a *Page 731 much stronger state of facts, and in that case the Supreme Court of Oklahoma Territory, by Chief Justice Burford, affirmed the action of the lower court in sustaining a demurrer to the evidence.
The judgment in this case is affirmed.
All the Justices concur.