There is no reason to suppose nor indeed is it contended that Rem Williamson, the assignor of the mortgage, had any fraudulent intention or design of injuring the complainant by giving the certificate in the manner he did. He was an old man, and probably forgetful and ignorant of consequences, and, therefore, misled by the artful persuasions of the designing knaves who beset him on the occasion.
The complainant has also been remiss: in the "first place, in not seeing that the judgment was satisfied of record before he advanced one dollar of his money to Foster or in not discovering the sheriff’s advertisement of sale and putting a stop to this proceeding before it was too late ; and, secondly, in not. placing the assignment from Williamson upon record. Had he attended to the first, he would have saved the whole of his money; and had he taken the latter precaution, he would have, at least, prevented the loss of the eleven hundred dollars for which the assigned bond and mortgage were given. He was not bound, however, to record the assignment. It was a valid instrument without being recorded; and the security of the bond and mortgage were not lessened by the omission, except so far as the acts of the assignor might tend to impair or endanger it. The assignee had a right to repose upon the integrity of the assignor not to do any act to defeat the security; and it certainly can never lie in his breast to say, that the assignee of the mortgage should have protected himself against the subsequent acts of the assignor by recording the assignment. Hence, the defendants cannot avail themselves of any imputable carelessness or remissness of the cómplainañt jn this respect in order *138to rid their estate from liability to make restitution, if,- by a&y act of their testator, the liability has been incurred.
In the absence of all intentional fraud on his part, it is insist-^ ed, that he did not become liable to make good any portion of the complainant’s loss. I can perceive no difference, however, as to the rights of an injured party, whether a man intends to act fraudulently or suffers himself to be the victim of the fraud of others, if, by his act, a loss or injury is sustained. .In a moral point- of view there is a great difference, but the injury is the same and requires equal reparation, so far as human laws are concerned; and this" too, whether -the act proceeds from a premeditated design to do wrong or from carelessness or ignorance of the consequences. If a man will permit himself to be the dupe of others and voluntarily do an unauthorized act or one which he had no right to perform, and by which an innocent person suffers, there can be no reason why he should not make good the loss.to the injured party.- Arguing in this way, I think the present case resolves- itself into the question, whether, after the assignment to the complainant, the assignor had any right to interfere with or control the effect of the mortgage without the knowledge or consent of the assignee ?
It is said, in the first place, the mortgage was paid off and satisfied to Williamson by Foster and not by the complainant: and, therefore, it had become functus oficio, was no longer a subsisting security, and, consequently," Williamson might lawfully cancel it. of record. This brings up the question of fact before alluded to.
- The weight of evidence, as- to the course of the transaction, is, in my judgment, decidedly in favor of the complainant; and it appears to me, that the facts proved by the defendants, from which- their version of it might be inferred, may be very easily reconciled with the more positive proof on the part of the com- . plainants and with the state of facts which such proof presents.
But, from the view which I have taken of the case, it appears to me not material which way the matter is considered. And "even taking the transaction to be as represented by the defendants, I think there is enough to entitle the complainant to the relief he seeks, He took the assignment indubitably for the *139purpose of keeping the mortgage alive as a subsisting lien upon the property and, as is expressed on the face of the instrument, ; . , ... , . to stand as a security to the complainant tor moneys loaned to Foster. This was not only in accordance with Foster’s previous agreement, but by and with his subsequent concurrence, exemplified by his attestation as a subscribing witness; and it must be taken for granted that Rem Williamson, the mortgagee, was made acquainted with their arrangement and understood the object so to be when he executed the assignment. There is no pretence but that it was read and fully explained to Mm. His son, Stephen B. Williamson, who afterwards succeeded to his estate and became his executor, lived with his father at the time and was present when the assignment was executed and became a subscribing witness to it. He must he presumed to have acquired an understanding of what his father was doing; and lie was capable of advising him against a wrong act, had he discovered one.
They, then, knew or ought to have known that the mortgagee parted with all his interest in and power over the mortgage and that the complainant, by virtue of the assignment, became the beneficial owner of it. as a subsisting mortgage and was vested with all the rights and attributes which belonged to a mortgagee. The original mortgagee could not lawfully afterwards exercise any act over the mortgage without the consent of the substituted owner. He, however, takes it upon himself, in about a fortnight afterwards, to certify that It was paid off-and discharged, and thereby—and without the knowledge or consent of the complainant—it was cancelled of record; and the complainant deprived of the benefit of the security.
Admitting both parties to have been equally innocent: which ought to bear the loss ? Upon every principle of justice- and equity, he whose act was the occasion of it.
Various other points were raised upon the argument, on the part of the defendants, which I have considered; but none of them appears to be sustained. It is unnecessary to notice them further, since i am satisfied the interference of Rem William*140son, from whatever motive, in discharging ihe mortgage after the assignment to the complainant, was an unauthorized and improper act and has produced the loss of so .'much of the complainant’s debt as that mortgage covered and which it was intended collaterally to.secure. As a plain matter of equity the complainant is entitled to be reimbursed the amount of such loss out of the estate of Rem Williamson,
There must he an order of reference to compute the amount ■ of principal and interest, unless the parties 'can agree upon it 5 and I must decree, that the moneys paid into court in the original cause be applied to the payment of such amount—with costs to the complainant to he taxed.