PERSONS v. PERSONS, 105 F. 39

CALDWELL, Circuit Judge, áfter stating the case as above, delivered the opinion of the court.

This case confirms the truth of Solomon’s proverb, “A brother offended is harder to be won than a strong city, and their contentions ! are-like the bars of a castle.” But two errors are assigned, and 'duly one of them requires any consideration, and that was an objection to the introduction of the bill of sale in evidence, and is in these words: “Objected to as incompetent, irrelevant, and immaterial, and for the reason that on its face it does not describe anything, and for the further reason that it appears that the same was not recorded until subsequent to the death of Thomas Persons, and, as a. matter of fact, not delivered at any time.” The specific grounds of the objection, which are all we can notice, are: (1) “That on its face it does not describe anything;” (2) “that it appears the same was not recorded until subsequent to the death of Thomas Persons, and, as a matter of fact, not delivered at any time.” The description of the mortgage in the bill of sale is: “The following personal property, to wit, real-estate mortgage given by IL E.

Keene .' and wife- of Barnes Co.-, North Dakota; also one given by C. C. .- Smith and wife. All of said mortgages are recorded in the county of Barnes, town of Valley City, North Dakota.” The bill of sale named accurately the parties to the mortgage, the county and state of ’ their-residence, and the county in which the instrument was recorded. Prima facie, this was a good and sufficient description. It was not claimed the grantor ever held a mortgage executed to him by Keene and wifé, other than the one in dispute.

If there had .been'a controversy as to what mortgage was meant, parol testimony ; would have been admissible to identify it. In such cases it is a maxiln of the law that that is certain which can be made certain. .The failure to record the bill of'sale does not affect its validity be- ‘ tween the parties to it, or affect the title of the property conveyed by it; nor does the death of the grantor before the bill of sale is > recorded affect its validity or the title of the property conveyed by it.

Upon the face of the bill of sale, the plaintiff was the person entitled to the possession of it, and he had it in his actual possession, and offered it in evidence. These facts afforded prima . facie evidence of its delivery, and entitled the plaintiff to put it in evidence. If, in the language of the objection, “as a matter of fact” . the instrument had never been delivered, the burden rested on the ' defendant to prove that fact. The bare assertion of the fact, without any offer to prove its truth, would not justify the court in excluding the bill of sale on that ground.

The judgment of the cir,’euit court is affirmed.