The opinion of the Court was by
Weston C. J.David Greely must be regarded as an interested witness; and his testimony cannot be legally admitted. If the defendants’ title prevails, his debt to his creditor, Farley, is paid; if it does not prevail, his debt remains unpaid. This is not balanced, by a revival thereby of his claim against Garland, an insolvent man. Greely held for himself and in trust for his partner, French. We are not therefore satisfied, that the deposition of French can be received to sustain that title ; although his interest is not so clear and direct as that of Greely. Garland, we doubt not, is a competent witness for the defendants. The result as to him will determine only which creditor shall be paid.
The title is in the defendant, Roberts, unless it has been made to appear, that the mortgage given by Garland has been *310discharged. This is denied by the answer; and the question is,- whether this denial is countervathed by the proof, adduced by the plaintiff. From the deposition of Treat, he appears to have understood, that he received the balance due him. as payment of the mortgage in behalf of Garland. His conveyance by deed to Greely within a few days, would seem to give the transaction a different character.
That Garland intended the title should pass to Greely, and that the latter so understood it, Garland positively testifies; and there is nothing in his first deposition, put into the case by the counsel for the plaintiff, if that is admissible, which contradicts this fact. The principal conflict between the two depositions, arises from the uncertainty in the mind of the witness, whether when the arrangement between himself, Greely and Treat was made, he knew of the existence of the attachment by the plaintiff, or whether, if so, when he previously consulted counsel, that fact was taken into consideration. In the first deposition, he appears finally to settle down upon the fact, that he did know of the attachment.
We are not satisfied, that this conflict renders Garland unworthy of credit. The mortgagee, Treat, had taken possession for the purpose of foreclosure. Garland was under no obligation to redeem, or to keep the mortgage open, by obtaining an extension of time, for the benefit of the plaintiff. He might lawfully remain passive, and suffer the foreclosure to be consummated. If he procured Treat to convey to Greely, it placed the plaintiff, as creditor, in no worse situation, than if the equity had expired whthe the estate was in the hands of Treat. This movement had no tendency to injure the plaintiff. So long as Garland did nothing affirmatively to impair his rights, he was at liberty to persuade Greely to take the estate. Nor did the arrangement become fraudulent, by any agreement on his part to accept it as security for any debt due from Garland, or for any liability on his part. Treat is not sustained, but contradicted by Garland, Taking that in connexion with the evidence, arising from the deed executed by Treat, perhaps it would not be too much to say, that the weight of the testimo*311ny rather is, that the mortgage was not intended to be discharged ; but certain it is, that there is not proof enough, that it was so intended, to countervail the answer.
If the mortgage is not proved to be paid and discharged, it is insisted, that it should not be regarded as foreclosed, but as still subsisting; and that the plaintiff, as a levying creditor, ought to be let in to redeem ; and he moves for leave to amend his bill, if necessary, to make this right available. The foreclosure attached on the twenty-fifil of October, 1835, unless it was waived, or continued open by an extension of time. There is no evidence, that Treat waived the foreclosure. As to an enlargement of time, he deposes, that he told Garland he would give him some time, but he must not wait long, as he might take advantage of the mortgage.
Assuming that this intimation is binding upon the defendant, Roberts, it was made more than five years ago, and the plaintiff offers no proof of tender, or of payment, other than what has been before considered. Giving the intimation its most extended construction, the enlarged time has long since expired. If the superior knowledge of Garland and Greely has given the latter, and those who claim under him, an advantage over the plaintiff, it resulted from the foreclosure, which was in a train for consummation, and which they were not bound to arrest for his benefit. French and Greely had fair claims upon Garland, for payment and indemnity. The legal title has gone to Greely to secure or satisfy them; and we perceive no superior equity in the plaintiff, by which it can or ought to be disturbed.
Having thus disposed of the main question, if the defendant, Roberts, is in possession of any strip or passage way not embraced by the mortgage, the plaintiff has for this a full and adequate remedy at law, to which he must be referred.
Bill dismissed.