The opinion of the Court was drawn up by
Bice, J.Trover for a stock of goods taken by the defendant, as sheriff of the county of Penobscot, on a writ dated April 3, 1857, in favor of John M. Barnard & al. v. Samuel B. Field. On the 13th of the same April, the defendant caused the goods, thus attached, to be appraised under the provisions of c. 114, §§ 53 to 56, of the B. S. of 1841, and, on the 17th of the same month, said goods were sold by the defendant.
The plaintiffs claim title by virtue of a mortgage from Samuel B. Field, to themselves and others, dated January *3815, 1857, and recorded January 16, 1857, duly accepted by tbe plaintiffs, which mortgage contains this condition: —
" Provided nevertheless, that if the said Samuel B. Field, his heirs, executors or administrator's, shall well and truly pay to the said grantees, their heirs, executors, administrators or assignees, all his indebtedness to each of them by note, account or otherwise,” then, &c.
This mortgage was made subject to a mortgage to Benson and Fuller, dated January 14, 1857, and recorded the same day, to secure to them all the mortgager’s " indebtedness, or where they, or either of them, have indorsed notes for me,” &c.
Both mortgages were recorded in the office of the city clerk of the city -of Bangor.
The case was referred to the presiding Judge with the right to except by either party.
As the foundation of their mortgage, the plaintiffs introduced in evidence two notes given by Samuel B. Field, and payable to his own order at either bank in Bangor, which were indorsed by said Field. The first note was dated Sept. 16, 1856, for $314,33, on 4 months; the second was dated Nov. 14, 1856, for $229,96, on 4 months. These notes had both been indorsed by the plaintiffs.
James Treat, one of the plaintiffs, testified that, at the date of plaintiffs’ mortgage, both the above notes were held by the Kenduskeag Bank of Bangor, having been discounted for the plaintiff in the regular course of banking business, and that he took up the first the day after it became due at said bank, and subsequently took up the other, and that nothing has been paid on them.
On behalf of the defendant, several legal propositions were presented to the Court, to be decided as matters of law, which were overruled. Of these rulings, as matters of law, the defendant now complains. The propositions referred to appear in the report of the case.
The first proposition was rightly overruled. The notes having been originally given to the plaintiffs, and having *39been indorsed by them, and discounted for their benefit and accommodation, constituted a continued contingent indebtedness from Field to them, so long as their liability continued thereon. Mace v. Wells, 7 How., 272; Fulwood v. Bushfield, 2 Harris, 90; French v. Morse, 2 Gray, 111; Bole v. Warren, 24 Maine, 94; Bargeant v. Balmond, 27 Maine, 539; Thompson v. Thompson, 19 Maine, 244; Howe v. Ward, 4 Maine, 195.
The second proposition has reference solely to matter of fact, which was submitted to and decided by the Judge acting in the place of a jury. His decision upon such matter of fact is not open to revision or exceptions.
The third proposition presents the consideration whether the defendant, in the attachment and sale of the mortgaged stock of goods, interfered with, or trespassed upon the then existing legal rights of the plaintiffs, without authority, and to their prejudice.
At that time the plaintiffs had an existing right to redeem from the first mortgage. Had the goods been sold under that mortgage there would have been a surplus which the second mortgagees could legally have appropriated in payment of their debt. Of this right the defendant, by his interference, deprived them. The case is unlike that of Clapp v. Glidden, 39 Maine, 448. In that case the title under the first mortgage had become absolute, before the act of conversion occurred. The title of the second mortgagees had, therefore, become extinct when the act was performed of which complaint was made. Not so here.
The rights of the first mortgagees, as presented by the fourth proposition, were to hold the goods as security to the extent of their claim under their mortgage. Until they had foreclosed their mortgage, there was an equity of redemption existing, available in the first instance, to the second mortgagees, and, then, to the mortgager. This equitable light was destroyed by the defendant. He is, therefore, liable in damages to the plaintiffs for that destruction, so far as they have thereby been injured.
*40But the Judge erred hi the rule of damages. The appraisal was a transaction between Eield and his creditors, under whose authority the goods were attached and sold by the defendant. To that transaction, the plaintiffs in this suit were strangers, and were, therefore, not bound by it, as matter of law. Eor this reason, the exceptions must be sustained and a new trial granted.
Tenney, C. J., Appleton, Cutting, May and Kent, JJ., concurred.