-delivered the opinion of the court, Ño objeetion has been made to the non registry of the • mortgage, and it would have been unavailing ; for Bristol, the agent of Leonard,. in taking the deed and making the purchase, had full notice of the mortgage; and-this was full notice to Leonard. .
The legal title is.manifestly in-the lessor of the plaintiffs; and it must prevail, unless he has done some act which ‘ precludes him from resting on. his mortgage. It has been urged, that Potter’s agreement with Bristol, that the 1,000 dollars advanced by Leonard to Bristol, for the purpose of discharging the mortgage, should be retained by Bristol, and that the amount due on the mortgage should be paid by Bristol, by the contemplated conveyance by Bristol to. Pjotter,. of land contracted for with Sacket-t, was such an interference on the part of- Potter, and operated so injuriously and fraudulently towards Leonard, that Pptter cannot now insist on his mortgage.
It cannot be doubted, that, in consequence of Bristol’s ap'pfopriating, to his own use, the 1,000 dollars placed in his hands by Leonard, to pay off the mortgage, the latter has been defrauded of that amount; but the question still returns, who has been the culpable cause of the loss ? I cannot perceive' that-Patter is chargeable with any direct or constructive fraud. He knew, indeed, that Leonard had sent to Bristol 2,000 dollars; fialf of which was to be paid to Foster, for his right to the equity of redemption, and the other half in discharge of the mortgage. The agreement between Potter and Bristol may have operated to prevent the latter from paying off the mortgage ; but it does not appear that Potter expressly agreed that Bristol should retain the 1,000 dollars inténded. to be applied to the payment of the mortgage, nor does it appear that Potter ¡mew that this retainer was concealed from Leonard* ■
*184‘The fact is, that the injury to ¡Leopard is. entirely .attributable to the conduct of his own agent, Bristol '; and it'would 'be unj,ust that this loss should be sustained by iPoí¿e*y whose-conduet ap-. pearsfohave been fair, ■candid, and; upright. . ■' 1 ■
If it could be made- out, that Potter deiiyhd some ¿benefit from Bristol's renouncing Ms contract with Sackett; it. 3o.es not occur to me -that the defendants can avail themselves-of that to invalidate Potter's mortgage.. Nothing can produce that effect but.a direct and .positive'fraud on the par-tbf. ,P.o(i«r,. or.nir .aeT tüal payment- of" the'mortgage; Of the latter there is nopre-5 tencé, and I see no evidence to warrant us irrsaying that Potóer. has been guilty of such a fraud as to. be estopped from setting up his mortgage.
It is very quéstionablé whether Potter derived ¡any ’ benefit from the. contract between Sackett and Bristol. Sackett testifies, that he-made .no agreement’with Potter, nor-made hint.bny offer of the landi before Bristol relinquished his contract..
There’ is nothing that can affect Potter's, right ¡underhis- mortgage.
Judgment foi? the ¿plaintiff