786; Caldwell v. Trowbridge, 26 N. W. Rep. 49; Leighton v. Stuart, 26N. W. Rep. 198; Tabor v. Sampson, 4 Pac. Rep. 45. Plaintiffs mortgage not being filed was void against defendant even though he had actual notice of its existence. Bank of Farmington v. Ellis, 30 Minn. 270; ‘Houk v. Condon, 40 Ohio St. 569; Wilson v. Leslie, 20 Ohio 161; Barr v. Cannon, 69 Ila. 20, 28 N. W. Rep. 413; Farmers L. & T. Co. v. Hendrickson, 25 Barb. 484; Tyler v. Strang, 21 Barb. 198; Ramsey v. Glenn, 33 Kan. 271; Jewell v. Simpson, 17 Pac. Rep. 463; Ransom v. Schmela, 13 Neb. 73. Filing is necessary to give the mortgage validity as to creditors, and the contest between the creditor holding the mortgage and the creditor with the attachment is simply a race of diligence. Rich v. Roberts, 48 Me. 548, Travis v. Bishop, 13 Metc. 304; Bevous v. Bolton, 31 Mo. 437; McComb v. Meyers, 8 Wis. 236; Lockwood ‘v. Slevin, 26 Ind. 124. If the plaintiff in replevin alleges that the defendant, the sheriff, is in possession of goods and wrongfully detains them, he is estopped from claiming that the defendant is not in possession for the purpose of showing that the defendant has not made a valid levy or attachment. Thompson on Trials, § 197; Derby v. Gallant, 5 Minn. 119; NV. P. R. R. Co. v. Paine, 7 Sup. Ct. Rep. 323. Plaintiffs rights under the mortgage were lost at time of trial because of its failure to refile its mortgage—and defendant was entitled to judgment. Wells on Replevin, § 496.
Corliss, C. J. This litigation presents a strife for supremacy between a chattel mortgagee, the plaintiff and appellant, and an attaching creditor of the mortgagor, one of the defendants and respondents. The sheriff who made the attachment and the creditor in whose behalf it was made are both parties defendant. The nature of the action is replevin. To sustain it, the plaintiff must show a valid chattel mortgage, and that its lien is superior to that of the attachment. The mortgage has been assailed as invalid for want of a sufficient description of the mortgaged property. It was executed at Oshkosh, in the State of Wisconsin, on property in the then Territory of Dakota. The portion of the mortgage material to a proper consideration of this point reads
