the opinion of the Court was delivered by
Oreen, J.:It cannot be doubted that the note from Keene to Up-ham, dated November 28, 1862, contained an effective, valid assignment of tlie bond and mortgage given by Dyer to Keene, It describes the bond by its date and amount, and the name of the obligor, and the mortgage by a special reference to its record, and declares explicitly that both *465were assigned to Upham on the day of the date of the note as collateral security for the payment of the note. While this kind of an assignment would not enable the assignee to proceed by suit in his own name, it was, nevertheless, entirely effectual to pass a perfect title to both the bond and the mortgage to Upham, the assignee, in accordance with its terms. Subsequently, ■ in February, 1865, and before the assignment to Jaquett, which was not made till November 29, 1865, Upham asserted his title to the bond by entering judgment upon it, in his name as assignee of Keene, in the common pleas of Philadelphia, and by transcript in the common pleas of Tioga. As Dyer, the defendant, made no objection to the form in which the judgment was entered, no one else could do so, and it was as fully operative in ail respects as if it had been entered in the name of Keene for the use of Upham. This judgment was notice to all that Upham had enforced his title to the debt secured by the mortgage, as the bond is fully described in the record entry of the judgment precisely as in the mortgage. • Being thus the assignee of the bond and the mortgage, and the plaintiff in the judg-" ment entered upon the bond for the payment of the mortgage debt, Upham was undoubtedly the proper person to release the land bound by the mortgage and judgment. Certainly Keene could not have done so, as his title was divested and all others were strangers. In this condition of the record, Benjamin Jones, the defendant’s predecessor in the title, purchased from Dyer, the owner of the fee, the part of the lands described in the mortgage which is in controversy in this action.' He bought by articles of agreement in September, 1864, and at once entered into possession and made improvements, and he and his heirs have remained in possession ever since. Deeds were made to him, one on September 3.0, 1864, and the other on January 10, 1865, for the premises purchased. It being desired to release the land sold to Jones from the lien of the mortgage to Keene, such release was executed by Upham to Dyer on October 10, 1864, for the consideration of three thousand dollars paid by Dyer to Upham. Why should not Jones have the benefit of this release? It is difficult to understand. Upham’s title to the mortgage by equitable assignment was undoubted. He has obtained judgment for the mortgage debt which clothed him with the legal title thereto. He only could give an effective release for a lien which he held. He gave the release for a full consideration actually paid for the benefit of an innocent and good-faith purchaser who took a perfect paper-title *466for the land in question, and followed it up with actual possession and improvements. If this release was operative then, it certainly was operative against persons whose interests never came into existence until months after it was executed, delivered, and recorded. For it was recorded in Tioga county, where the land lies, on February 2, 1865, and thus again notice was given, not only of the assertion of Upham’s title to the mortgage, but of the exercise of his power to release, applied to this particular land, nearly ten months before Jaquett loaned his money or took his assignment. In point of fact, Jaquett never received the original bond secured by the mortgage of November 10, 1862, the bond which he acquired having been really executed in 1865, and dated back to the same date as the original bond. If this was a'fraud upon Jaquett, we fail to perceive how Jones, who had nothing to do with it, should be held responsible for it. He was as innocent as Jaquett could possibly be, and his rights were established long before any right of Jaquett had come into existence. His release was recorded, and he was in possession of the land. This possession was sufficient to put Jaquett upon inquiry as to the title of Jones, and that inquiry would naturally have developed the true facts of the case. An examination of the record for liens against Dyer, the owner, would have disclosed Upham’s judgment for the very debt described in the mortgage he was about to buy. Moreover, this bond and mortgage were then (in November, 1865,) more than a year past due; Keene, the mortgagee, had never advanced any money on the mortgage; so far as Jaquett was concerned, his advance would only give him a lien from the time it was made; the original bond given with the mortgage never was transferred to Jaquett, and the mortgage was not given to secure the bond’executed in 1865, which was assigned to Jaquett; the plaintiff’s title is not derived from a sale under the mortgage but from a sale under a test. vend. ex. issued upon a judgment entered in the common pleas of Philadelphia in 1874 on the bond and warrant which Jaquett acquired in 1865, and not upon the bond given in November, 1862, with the original mortgage. In all these circumstances, we cannot think that the title of Jones, acquired in 1864, more than a year before Jaquett had obtained any rights whatever, and accompanied with immediate and continuous possession, caii be taken away by force of any of the facts claimed in support of the plaintiff’s title.
Judgment affirmed;