Harms

This action is to recover one hundred tons of baled hay, or the value. Defendants had judgment, and plaintiff appeals from it and the order refusing a new trial.

The hay was raised by Silva, who, on January 21,1889, mortgaged the same, then a growing crop, to Keating, to secure the sum of $350, with interest, also “ whatever further necessary costs that may be needed to guard and care for said crops.”

The mortgage was duly executed, and had attached to it the affidavit required by section 2957 of the Civil *639 Code; but the officer neglected to certify the acknowledgment, and Keating had the mortgage recorded by the county recorder, without the certificate.

Afterwards, March 29,1889, Silva mortgaged the same crop to plaintiff, to secure a debt due from Silva to him. Plaintiff took his mortgage with full knowledge of Keating’s mortgage, and expecting at the time to obtain a second lien, being unaware of any defect.

■ Plaintiff’s mortgage was duly executed, and was recorded on the day it was executed.

Each mortgage contains a stipulation giving the mortgagee a right to take possession of the crop when harvested. June 12, 1889, the hay having been cut and baled, the plaintiff…