The mortgage to the demandant was prior to that under which the tenant claims title, and, if valid in law, will entitle the demandant to the possession of the demanded premises. The question of fraud was submitted to the jury, who on this point found in favor of the demandant. The further inquiry is — 1st. Whether there was any sufficient legal consideration to give effect to this mortgage. 2d. Whether the demandant has not, by his acts and declarations, discharged his lien upon the land, or at least so postponed his mortgage that it is to take effect subsequently to the mortgage to the Lafayette Bt nk, the interest in which latter mortgage has become vested in the tenant.
The legal title to the demanded premises was, as it seems to us, vested in John Hews, by the deed from William Parker to him. This conveyance was made upon a sufficient considera*429tion ; ihe grantor, Parker, being then indebted to Hews in the sum of $ 500, and Hews being also the surety of Parker upon a note for the sum of $ 1000, and also liable as surety on a bond to the judge of probate ; to secure which debt and liabilities, this conveyance was made to Hews. It also further appeared that Hews, as such surety, paid the note of $ 1000.
It was objected to the validity of Hews’s deed, that it did n^t pass the demanded premises to him, inasmuch as, on the day of the execution thereof, his grantor, William Parker, made a general assignment of his property to assignees, in trust for his creditors, and that by this assignment he parted with all his interest in the premises, and nothing therefore remained to pass to Hews. It seems to us, however, that upon the facts disclosed, the eonvejrance to Hews might well pass the demanded premises, notwithstanding the deed of the same date to the assignees. The conveyance to the assignees does not in terms describe the property now in controversy. It does convey, by particular recital, certain other real estate, and then conveys certain personal property of the grantor, and concludes with a sweeping clause conveying ££ all other goods, wares, and merchandise, moneys, debts, effects, and estate of him the said William Parker,” &e. But from the manner in which the term £< estate ” is introduced, and its association with personal property, it may be very nat urally inferred, upon the principle of noscitur a sociis, that it was not intended to embrace the land conveyed to Hews ; and it ought 'so to be inferred, treating the two conveyances as executed at the same time, in order that effect may be given to both.
It was then further objected, that the debt to Hews, and all claims he might have as the surety of Parker, were discharged ; Parker having discharged all responsibilities upon the probate bond, and Hews himself having released all his other claims, by becoming a party to the assignment made by Parker; and therefore, it is said, no consideration would subsequently exist to support the conveyance to Hews, and his interest in the premises must be ineffectual to pass a good title to the demandant.
There are two answers to this objection : 1st. That the *430original conveyance to Hews vested the legal title in him, and the notes being discharged, a bona fide title acquired under him would be good and effectual. 2d. The tenant claims also under the same source of title. Charles Gaylord, the mortgagor to the Lafayette Bank, derives title through the deed of John Hews, upon which also the demandant relies ; and it is only by virtue of the deed of Hews to Gaylord, that Gaylord has at anytime heretofore had any pretence of legal title to lot No. 24, one of the parcels of land in controversy. Hews, being thus seized of the premises, upon receiving from the demandant the balance that was unpaid on the two notes above mentioned, by an arrangement participated in by the demandant and William Parker conveyed the same to Gaylord, and Gaylord at the same time gave the mortgage to the demandant, under which he now claims title. By this arrangement, Gaylord became the owner (subject to his mortgage to the demandant) of lots No. 24, and No. 25, to the former of which he had at no former period any title ; and to the extent of the value of this lot, there was a consideration received by Gaylord for the mortgage he gave to the demandant. On the part of the demandant there was a consideration for the mortgage to him, by reason of the present payment to Hews of the sums unpaid on the notes he held, and the subsequent payment by him of debts due from William Parker, all of which (the debt paid to Hews inclusive) amounted to $ 348V20, as appears by the testimony of William Parker.
The jury having by their verdict negatived the alleged fraud, the inquiry is reduced to this point; whether, supposing this conveyance to the demandant to have been untainted with fraud, the consideration shown would not be sufficient in law to support the mortgage to some extent, and to authorize a conditional judgment for such sum, if any may be really due thereon. And the court are of opinion that the great discrepancy between the consideration actually paid, or amount to be secured by the mortgage, and that which was in form set forth in the mortgage as the debt of the mortgagor, though presumptive evidence of fraud, was not conclusive, but might be rebutted by the demand-ant , and if so rebutted, the mortgage might be good for the *431consideration actually paid ; and therefore, if such payment was actually made by the demandant to Hews and the other creditors of William Parker, as is alleged by the demandant, this might furnish a good consideration, to the amount then paid, and to that extent the mortgage might be valid in law.
The further inquiry is, whether the demandant has', by any acts or declarations of his, waived his priority as mortgagee, and postponed his mortgage to take effect subsequent to that to the Lafayette Bank. The only question here presented is concerning the effect to be given to the evidence as to what passed at the interview between the demandant and the president of the Lafayette Bank, before the acceptance of the mortgage from Gaylord to that bank, on which occasion the demandant said to the president of the bank, who was acting as its agent in the matter, that if the bank would take the mortgage of Gaylord as proposed, “ he would relinquish his claims on the demanded premises.” This declaration of the demandant, it is said, must operate to estop him from setting up his mortgage against the tenant, either, first, as an admission acted upon by the Lafayette Bank, and therefore conclusive against the demandant; or secondly, upon the doctrine that if a party, having title, stands by encouraging and promoting a sale to a third person, he waives his prior title ; or thirdly, that it was a parol discharge of the debt secured by the mortgage.
The cases bearing upon the first two of these positions were very fully presented in the argument of the counsel ; but in the view we have taken of the evidence, it is unnecessary particularly to consider the effect of those decisions, or to settle the question whether the principles stated in those cases can be applied by a court of law to a title to real estate. The case before us has not the material element necessary to give effect and application to the principle contended for ; there being no evidence of any concealment of an outstanding title. The party here was not misled by any such concealment, but has been damnified solely by the breach of the promise of the demandant that he would relinquish his title. But it was a parol promise to relinquish title to real estate, and was therefore inoperative and void *432oy the statute of frauds. Rev. Sts. c. 74, § 1. As tending to prove that there was no existing debt, and that the demandant would claim no such debt, it was allowed by the presiding judge to have its full effect as presumptive evidence that the demand ant’s mortgage was not made bona fide ; and beyond this it could have no proper effect. The great question in this case was the question of fraud, which was for the jury. Treating this mortgage as made bona fide, as found by the jury, we think. that it may be sustained as made upon a sufficient consideration.
Judgment on the verdict.