If the mortgage, under which the demandant ■claims to recover, has been paid, he is not entitled to the conditional judgment, and by statute chap. 125, sect. 10, judgment must be rendered for the tenant, and he will hold the land discharged of the mortgage.
The tenant offered to prove that Johnson, the mortgager, *395procured Merrow, his grantee, to convey to the demandant, eighty-five acres of the land embraced in the mortgage, and that the demandant agreed, as a part of the consideration of the conveyance, to pay the mortgage to Pitts. But instead of paying it, and having it discharged, he took an assignment of it to himself.
A part of the price of the land remaining with the demand-ant, for the specific purpose of paying the mortgage, must be considered as so much money in his hands. If he had then owned the mortgage, it might have been directly paid by the conveyance of the land, upon an agreement to that effect. After he took the assignment, he was the only person to whom payment of the mortgage could be made. He united in himself the person, who should make the payment, and who should receive it. The money was left in his hands to pay the mortgage, and remained there when he took the assignment. After that event, he held the mortgage and the money appropriated to its payment. It would have been an unnecessary ceremony for Johnson to have taken the money from, the demandant, and then handed it back to him again. Under such circumstances, the mortgage must be considered as paid.
The tenant claiming under Johnson by deed of warranty, the title, which Johnson obtained from Pitts, subsequent to Johnson’s deed to the tenant, enured to him in the demanded premises, and conferred upon him the legal right of presenting in defence, the payment made by Johnson, by which his estate is relieved from the mortgage, that Johnson was bound to discharge.
The default is to be taken off, and the action stand for trial.