The testimony of the demandant, that the mort gagor settled the suit brought against him on the mortgage note, by paying on the note the sum in question, must be taken in connection with his further testimony that this sum was not indorsed, nor any agreement made as to its being indorsed, upon the note, and that the payment was made with the understanding and agreement that the demandant should bring an action upon the mortgage, and, if he collected the full amount of the note from the mortgage security, pay back the sum in question to the mortgagor.
Upon the whole testimony, it was a question of fact, depending upon the intention of the parties to the transaction, whether the sum was paid in satisfaction and discharge of so much of the note, and to take immediate effect as such payment; or was merely advanced to and deposited with the demandant by way of security, and to be applied in payment of the note only in case the whole amount of the debt should not be obtained out of the mortgaged property. The jury having been instructed otherwise, the
Demandant’s exceptions must he sustained.