The principal question here is as to the effect, between these parties, of the second mortgage upon the one first executed by Huntington. In the aspect in which the case is presented, we deem it unimportant to inquire whether the first mortgage might not be set up to protect the property against a subsequently acquired lien, because if that effect is conceded, it does not follow the present defendant may assert a title under it as against that arising out of the one afterwards executed and accepted by him. It seems to us that the legitimate inference from the facts stated is, that the defendant waived all his rights under the first mortgage, and consented to look for his security alone to the second. There are many instances in which the law will carry out the manifest intention of the parties, by giving to deeds an .effect different from that the mere terms will ordinarily indi*782cate, and a party is frequently estopped by his own acts from asserting a title which otherwise would prevail. Thus a release to one of several joint obligees may be pleaded in bar by all, and a covenant not to sue is sometimes construed to be a release. [2 Saund. 48, a.] So the acceptance by a tenant of a new lease of the same premises during the continuance of a former lease, has been deemed a virtual surrender of the first, when such a presumption arose from the acts of the parties. [Van Rensellaer v. Penniman, 6 Wend. 569.] And where one had accepted a deed from another, it has been held he is estopped from asserting title in himself to show a breach of the grantor’s covenant of seizin. [Fitch v. Baldwin, 17 Johns. 161.] In the present case it will be seen both mortgages secure the same debts to the defendant, who by the terms of the first was at liberty to sell the slaves after January, 1840. By the terms of the last, the law day is fixed one year later. It cannot be supposed the law would permit the party, after impliedly if not expressly stipulating that the mortgagor should retain the slaves until the later period by joining in and thus accepting the deed, to proceed under the former mortgage. And if in this respect that is set aside, there is precisely the same reason to prevent the trustee therein named from acting, to wit, that the parties have stipulated for the action of another trustee.
It follows as the necessary result of these views of the effect, as between these parties, of the acceptance of the second mortgage, that it must'be considered as superseding the first, and the defendant is really holding the slaves under a title which in point of law is subordinate to that under which the plaintiff claims. This being established,, the principle settled in Foster v. Goree, 5 Ala. Rep. 424, as well as Echols v. Derrick, 2 Stewt. 144, is entirely applicable, and controls the case.
In our judgment the court erred in charging that the possession of the defendant was adverse to the title purchased by the plaintiff, and the sale for that reason void.
Judgment reversed and cause remanded.