Although it may be doubted whether all the conclusions of the court at special term in this case were correct, still I see no sufficient ground for a reversal of the judgment. The court has found that the agreement that the horse in question should be left with the defendant as security for the keeping of all the horses, was made in April, 1859, and expressly refused to find, that any agreement for a lien was made at the time when the horses were left with the defendant in December, 1858. This court can not look into *Page 260 the evidence to see whether this refusal was right or wrong, but must take the facts as they are found. The defendant, therefore, can claim no lien prior to April, 1859, and as the second mortgage to the plaintiff was executed in February, 1859, and was duly filed in the town clerk's office, and as no attempt was made to impeach this mortgage for fraud, the plaintiff's lien by virtue of it was prior and paramount to that of the defendant. Hence all the evidence offered, and the decisions made, in reference to the first mortgage, were wholly immaterial, and could in no way affect the plaintiff's right to recover under the second mortgage, which was in no manner invalidated.
Whether the court was right or not, therefore, in admitting the copy of the first mortgage in evidence, or in holding as a conclusion of law that the plaintiff could claim as against the defendant under that mortgage, is of no importance in the case.
The proof offered of the fraudulent representations made by the mortgagor as to the ownership of the horses, and of his concealment of the existence of the mortgages, was clearly inadmissible.
The plaintiff was in no respect responsible for those representations. The only point upon which any doubt can exist, is that arising upon the admission of parol proof of the contents of the letter written by the defendant to the mortgagor. If the evidence thus obtained had been in any degree material, or could in any manner have affected the judgment rendered, I should be inclined to hold its admission erroneous. But it is obvious that it could have no such effect.
The judgment should therefore be affirmed.
All the Judges concurring,
Judgment affirmed. *Page 261