Two distinct grounds of defence, as appears from the bill of exceptions, were set up in the present case. 1. It was said, that the defendants, by virtue of a mortgage made by Donalson in 1841, and the subsequent proceedings under that title, had acquired a perfect title to the property in controversy, as against any subsequent mortgagee of the same holding under Donalson ; so that if a mortgage had been duly made and delivered by Donalson to the plaintiff, in 1847, yet the same would be wholly ineffectual to defeat the older title under the mortgage to the Thompsons in 1841. 2. It *14was further contended, that the plaintiff had no such mortgage as he pretended to have received in 1847 ; that the same was invalid by reason of its not having been duly delivered, and that for this reason he could not maintain his action.

Both grounds of defence were submitted to the jury, who returned a general verdict for the defendants. This necessarily opens the inquiry, as to the ruling of the presiding judge, upon both points of the defence, as we cannot know upon which ground the verdict was rendered. If either ruling was erroneous, the verdict must be set aside.

As to the mortgage to the plaintiff, we are of opinion, that the objections taken to the instruction of the presiding judge are well founded. It was quite correct to instruct the jury, as an abstract proposition, that unless there was an actual or constructive delivery of the mortgage, the plaintiff acquired no title under it. But we think, that proper effect was not giren to the evidence, that the mortgage was made upon a previous request by the plaintiff. It is well settled, that under an agreement between the parties, that one shall make a deed to the other, and deliver the same to the register of deeds for registry, and for the benefit or use of the grantee, the making of such deed and leaving the same with the register, for such purposes, constitute a good delivery of the deed to the grantee, without any further act. Here, however, the evidence did not go so far as to constitute the register an agent to receive the deed for the plaintiff; as it is not stated, that it was a part of the previous agreement that Donalson should leave the mortgage for record with the town clerk. But it was shown, that at the time of giving the note, which was the subject of the mortgage, Donalson agreed with the plaintiff, to secure the same by a mortgage of personal property. This was evidence of a previous request, on the part of the plaintiff, and an assent to take such mortgage ; and although not sufficient alone to establish a delivery of the same, yet if followed by subsequent acts of the plaintiff, assenting to and adopting the mortgage, it was, with such subsequent assent thereto, quite sufficient evidence to show a delivery of the mortgage.

We think that the evidence offered upon the point of sub*15sequent assent, taken in connection with the previous request, ought to have been submitted to the jury, as competent evidence to satisfy them of the delivery of this mortgage, and that "they might properly have found such delivery to have been made. The fact, that the original mortgage, after it was recorded, was lost or stolen from the office of the town clerk, or accidentally destroyed while there, and before coming actually to the hands of the plaintiff, would not of itself defeat its operation as a valid subsisting mortgage, if the mortgage was made in pursuance of a previous request of the plaintiff, and after thus being made and received, was assented to by him, by receiving a portion of the property mortgaged, and asking for a copy of the mortgage of the town clerk.

This mortgage would however only have effect, from the time of the adoption of the same by the plaintiff. When thus adopted by him, the mortgage then became valid, and although the original was lost, he might hold under the same as a valid mortgage. So far as the case is stated in the bill of exceptions, it does not appear that the defendants, acquired any new title to the property in controversy, between the date of this mortgage and the time in which those acts of assent occurred.

Whether the establishing of this mortgage will avail the plaintiff to any beneficial purpose, may depend upon the rights of the defendants under the mortgage to the Thompsons in 1841. That is prior in time, and may therefore defeat a subsequent mortgage, however well executed. The opinion of the court has reference solely to the question, whether the evidence was sufficient to warrant the jury, under proper instructions, to find the delivery of the mortgage to the plaintiff. Exceptions sustained.