The complaint in this cause alleges that W. S. Hamilton and T. P. Ames executed their promissory note in favor of plaintiffs below, bearing date December 31, 1868, and payable May 1,1869; and that, for the purpose of securing payment of the same, William Hamilton, T. P. Ames and J. A. Ames executed a chattel mortgage of the same date, which was duly acknowledged, and was filed for record and recorded in the recorder’s office of Lewis and Clarke county, on January 1, 1869. That the defendant below about April 25, 1869, obtained possession of the mortgaged property, and that the plaintiffs, on July 20, 1869, and before commencement of this suit, demanded of him possession of the same, which was refused.
The answer admits the execution of the note and mortgage, as set forth in the complaint, and avers that by the terms of the mortgage it was provided that the property *151should remain in the possession of the mortgagors until the maturity of the note ; that the mortgagors were permitted by the mortgagees, the plaintiffs below, to remain, and did in fact remain in possession of the property long after maturity of the note, and until July 1, 1869, at which date the defendant below in good faith purchased the mortgaged property of the mortgagors for a valuable consideration.
To this answer the plaintiffs demurred for insufficiency, which demurrer was sustained by the court below, and thereupon judgment was entered for plaintiffs, from which judgment the defendant appeals.
The demurrer admits the facts stated in the answer, and the only question raised relates to the construction to be given to the act of the legislative assembly concerning chattel mortgages, approved December 31, 1864. The appellees claim that the mortgage in question having been executed, acknowledged and recorded in compliance with that act, and providing’ by its terms that the possession of the property might remain with the mortgagors, under the act in question, was valid as against third persons for the period of one year from the time of record, without reference to the time of maturity of the mortgage debt, or to the provision contained in the instrument in regard to possession of the property. This is not the proper construction of the act. The parties themselves fixed the period by the terms of the mortgage, during which the mortgagors might retain possession of the mortgaged property, and it became the duty of the mortgagees to take immediate possession of the property, or endeavor so to do, at the expiration of the period limited, with all due promptitude and diligence. By a failure in so doing they lost their lien as against a purchaser in good faith from the mortgagors in possession.
What constitutes sufficient diligence is a mixed question of law and fact, and must depend upon the particular circumstances of each case, but in this instance the unexplained failure of the mortgagees to take possession of the property or to foreclose their mortgage for two months after *152maturity of their debt, as averred in the answer, we hold to be such laches, amounting to fraud, as to invalidate their lien as against the appellant.
The court below erred in sustaining the demurrer to the answer, and in rendering judgment for the plaintiffs below. The judgment is reversed and the cause remanded.
Exceptions sustained.
Knowles, J., concurred.At the trial of this action in December, 1869, the plaintiffs obtained judgment and the defendant appealed to this court. See p.