On the twenty-fourth of November, 1875, plaintiff made an agreement with J. Detroy and G. P. Detroy for the sale to them of a band of cattle (some one thousand five hundred' head) and some horses, for the sum of seventeen thousand dollars, for which sum he received their six promissory notes, each for two thousand eight hundred dollars and thirty-three cents and interest, payable respectively in three, nine, fifteen twenty-one, twenty-seven and thirty-three months. As security, plaintiff was to retain possession of the property, and deliver the same in parcels or lots as the notes should be paid. On the same day, and as further security for the payment of said notes,"said J. and G. P. Detroy executed to plaintiff a mortgage of certain real estate. After payment of *85the first and second notes, andón the twelfth day of February, 1875, plaintiff executed to J. and G. P. Detroy an instrument in writing, reciting, the executing of the mortgage, and declaring that “ whereas it was the true intention of the parties to said indenture that the said mortgage was executed for the security of only six thousand dollars of said amount, the said mortgagee having received other security from the said mortgagors for the balance of said seventeen thousand dollars, now therefore the party of the first part hereby certifies and declares that he has a lien under and by virtue of said mortgage on the land therein described to the extent and for the amount of six thousand dollars and no further, and for no greater amount; and that the party of the first part does hereby release the said land from the lien of said mortgage for all said seventeen thousand dollars over and above the amount of six thousand dollars, with interest thereon from November 24, 1873, at the rate of te.n per cent, per annum.”
After the execution of this instrument and before the commencement of this suit the third and fourth notes were paid and all of the personal property had been delivered. This action is brought on the fifth and sixth notes and for the foreclosure of the mortgage. G. P. Detroy had died, and the defendant, K. Detroy, had been appointed administratrix.
The Court below rendered judgment against J. Detroy for the amount of the two notes and interest, but adjudged and decreed that the mortgage was fully paid, and is not a subsisting lien, and that the defendant, K. Detroy, administratrix, go without day. The plaintiff’s motion for a new trial was denied, and he appealed from the order and from all of the judgment except so much-of it as was a judgment against J. Detroy.
We think the Court below committed error. The mortgage and the agreement or release of February 12, 1875, considered together, show that the plaintiff had and retained a lien upon the real estate by the mortgage to the extent of six thousand dollars and interest, and until all the notes should be paid in full that lien remained. The judgment and decree should have been in favor of plaintiff for the amount of the notes sued on and foreclosing the mortgage as to the defendants and the estate of G. P. Detroy, deceased.
*86The order and so much of the judgment as is appealed from are reversed and the cause is remanded for a new trial.
Boss, McKinstry, Sharpstein, and Thornton, JJ., concurred.