delivered the opinion of the Court.
All the questions raised in the report of this case were abandoned at the argument, excepting that relating to the legal effect of the release.
The plaintiff claims as assignee of a mortgage given by the tenant to J. & W. Chism, to secure the payment of a promissory note for three hundred dollars. The tenant contends that the note has been paid to the Chisms, and that the mortgage has consequently become inoperative. The note having been assigned after it became due, the plaintiff took it subject to all the equities existing between the assignor and the maker at the time the latter had notice of the assignment.
It became important, therefore, to prove the time when such notice was given.-
For this purpose J. Chism, one of the assignors, was offered as a witness, and having been released by the assignee from all liability by reason of the assignment of the mortgage and note, was admitted. In the course of his testimony it appeared, that the note and mortgage were assigned to secure and indemnify the plaintiff for monies paid and liabilities incurred for the assignors; and that unless the note secured by the mortgage should be recovered, the plaintiff would not be indemnified.
The Judge having thereupon ruled that the witness had a remaining interest, notwithstanding the release, the plaintiff inserted therein the words ec all other demands,” and the witness was reexamined without objection.
It is now contended that the action cannot be maintained because the plaintiff held the mortgage as collateral security only; and having by the release discharged Chism, from all demands, the collateral security re-vests in the original payees.
Such undoubtedly would be the case, if the plaintiff so held the mortgage, and if there had been an actual payment by Chism in discharge of his liabilities, other than by the assignment.
But it is to be kept in view that the assignment was absolute on its face, requiring nothing further to be done by Chism, the witness, *333to vest the note and mortgage unconditionally and irrevocably in the plaintiff, if there was any understanding or verbal agreement between Chism and the plaintiff inconsistent with the absolute character of the assignment, such agreement could not vary the legal effect of the written contract.
The plaintiff’s right to the mortgage depended upon the construction of the written assignment; and whenever the mortgagor had actual notice of that assignment, he became the debtor of the assignee, and Chism's legal right to the debt, or to exercise any control over the security ceased.
The release, therefore, could have no legal operation or effect upon the assignment.
The latter was absolute, unconditional, depending upon no contingency, but vesting in the plaintiff all the rights which the mortgagee had at the time the mortgagor had notice of its execution.
If there was any understanding or verbal agreement between the plaintiff and Chism, the witness, that the latter was to remain liable for any balance that might be due the former after enforcing his legal rights, under the assignment, against the tenant, that liability is effectually discharged by the release. In our opinion, the legal operation of the assignment and release is to vest the mortgage absolutely in the plaintiff, and discharge the witness from all demands arising in cousequence of the assignment, or any debt or liability which it was originally intended to secure.
Judgment for the plaintiff.