The property replevied in this suit was mortgaged to the defendant by Slocumb in November, 1847, to secure payment of a note which was not paid at the time of the trial. In July, 1848, Bridge bought the property of Slocumb, and in November, 1848, sold it back to Slocumb, who mortgaged it to the plaintiff in December, 1848, and released his interest therein to the plaintiff in April, 1849. The plaintiff’s title to the property would therefore be perfect, were it not for Slocumb’s mortgage to the defendant. And the general question is, whether that mortgage furnishes a defence to this action, or whether the defendant’s agreement of October 16th, 1848, is to have the effect of a discharge of that mortgage.
The evidence at the trial tended to prove, that after Slocumb had sold to Bridge the property which he had before mortgaged to the defendant, Bridge was not willing to pay Slocumb until the defendant’s mortgage should be discharged; that Slocumb informed the defendant of this fact, and proposed to give him another mortgage, if he would discharge the first; that the defendant acceded to this proposal, and agreed to carry it into effect at a future day; that he after-wards wrote a letter to Slocumb, stating that he could not find the mortgage, but that it would “ be sufficient for Bridge ” for the defendant “ to agree to discharge ” it, and that Slocumb would find an agreement to that effect at the bottom of the *457letter; that the defendant wrote at the bottom of the letter an explicit agreement to discharge the mortgage, and to hold Bridge harmless in relation to it; that Slocumb soon afterwards delivered this letter and agreement to Bridge, who carried them to the town-clerk’s office, where the mortgage was recorded; and that the clerk, on the 1st of November, 1848, made on the record the entry which is copied into the bill of exceptions. It does not appear, and it is not material, whether Bridge sold back the property to Slocumb before or after the clerk made this entry. It does not appear that the sale was after Bridge received the defendant’s agreement of October 16th.
The case comes before us upon exceptions taken by the defendant to the instructions given to the jury. We put out of the case that part of the instructions which referred to the jury the question whether the mortgage to the defendant “ had been in fact paid and discharged,” because it was admitted by the plaintiff at the trial, that “the note secured by the mort gage was unpaid,” and the jury did not find the contrary. The) found that there had been a bond fide discharge of the defendant’s mortgage, and returned a verdict for the plaintiff. We are of opinion that the verdict was well warranted by the evidence, and that there was no error in the instructions which the jury followed.
The defendant’s mortgage being discharged, Bridge’s title, under Slocumb’s sale to him, became perfect, and he might as well sell to Slocumb as to any one else. Slocumb, on Bridge’s sale to him, took Bridge’s unincumbered title, and duly transferred it to the plaintiff, who has a clear right, on the finding by the jury, to hold the property against the defendant.
Whether the defendant’s agreement of October 16th was per se a discharge of the mortgage, or if not, whether, after that agreement had been shown to Bridge, and he had acted upon the faith of it, the defendant was estopped to set up the mortgage against Bridge, and those claiming through him, are questions upon which we have no occasion to express or to form an opinion. Exceptions overruled