The plaintiff and her husband gave a note to one Robie, and secured it by a mortgage or written pledge of the furniture in question in this suit. The defendant advanced to the husband, who was his son, money, in whole or part, to pay the note. Thereupon the note and mortgage were surrendered to the husband in the presence of the defendant, the plaintiff not appearing to be present at the time. Before the parties separated, upon re-consideration, it was determined that Robie should assign the note and mortgage to the defendant, and he did so. It was ruled at the trial that, as against this plaintiff, the defendant could not receive the title in that way, if the note had been previously paid and the note and mortgage given up to one of the *157makers. The defendant contends that the retraction so immediately followed the fact of payment that all that was done at the time would be but parts of one transaction, and that it amounts to no moi’e than the correction of the result of a negotiation according to the understanding of parties. Undoubtedly, if the papers had been given up by some mistake, and not in accordance with the intention of the parties, the error could have been rectified. The fact, however, that the attempted recantation so immediately followed the surrender of the note and mortgage would amount to nothing, provided all the other elements existed to constitute it a distinct and independent thing. It would make no legal difference whether one minute or one year separated the two acts. The mortgage had become functus officio. For somewhat analogous cases, see Whittier v. Heminway, 22 Maine 238. Larrabee v. Fairbanks, 24 Maine, 363. Patten v. Pearson, 57 Maine, 428. Hodgskins v. Dennett, 55 Maine, 559.
In such a case as this, the law does not extend any right to the defendant by subrogation or substitution. He was under no obligation to pay, and had no interest in the contract personally. The verdict finds that he advanced his money, not to uphold the mortgage, but to extinguish it.
Exceptions overruled.
Appleton, C. J., Walton, Dickerson, Barrows and Dan* forth, JJ., concurred.