A part of the consideration for the mortgage of 1S98 was the surrender to the defendant of the mortgage of 1897. This latter mortgage was accordingly surrendered to the defendant as-satisfied. He has had it ever since and has it now. He has not offered to return it to plaintiff's, but claims the right to retain it. On this state of facts he is not entitled to a rescission and avoidance of the mortgage of 1898 on the ground of fraud. It is a condition precedent to that right that he-put plaintiffs in stain quo by surrendering or offering to surrender the mortgage of' 1897, which came to his possession as a part of the consideration for the new mortgage and upon the assumption of the validity of the latter.—21 Am. & Eng. Encyc. of Law, p. 84 et seq.; Jones v. Anderson, 82 Ala. 302.
To the plea of fraud on the part of plaintiff's in proeuriiur tlie CM-'ution by defendant of the mortgage ol 1898, plaintiffs replied that- under that mortgage and as part consideration for it they surrendered to him the mortgage of 3897, that defendant has not offered to return the same to plaintiffs lrat continues to hold it under a claim of right to do so. The replication waa a proper one, and its averments were proved, it follows that tlie trial court in the first instance properly gave the affirm:)cive charge for the plaintiffs, and erred in granting a new trial on the theory that the general charge should not have been given for plaintiffs. The judgment granting a new trial must therefore he reversed, and a judgment will be here entered overruling and denying defendant’s motion for a new trial.
Reversed and rendered.