suggested, could ascertained what property was intended to be mortgaged. Apply that rule to this case. The property was attached on a piece of real estate answering to the description contained in the mortgage of the land on which the mortgaged property was situated. Property the same as that described in the mortgage is found there. It is owned by the mortgagor. The creditor is aware of his ownership. It is seized by him as the mortgagor's property. Would a sane person entertain a doubt whether the mortgage was intended to cover the property seized? It will not do to assert that the creditor could not know of the contents of the mortgage until it had been filed. Not being within the protection of the law, he is bound to know of the mortgage and its contents without filing. If a creditor or mortgagee may insist that a description in an unfiled mortgage is not good merely because he did not know of the mortgage, he can always defeat an unfiled mortgage containing the most minute and perfect description of the property, although he does not fall within the scope of the statute which annuals the instrument as to certain classes of persons unless filed. The description, if good as to third persons when the mortgage is filed, is equally good as to them although the instrument is not filed. Whether such third persons are protected under the statute as against such unfiled mortgage is an entirely distinct and different question.
The petition for rehearing is denied.
Wallin, J., having been of counsel, took no part in the above decision.
(54 N. W. Rep. 1034.)
