The plaintiff claims to be in the condition of an ordinary mortgagee, seeking the aid of the court to extinguish the defendant’s outstanding equity of redemption in the mortgaged premises. And the question is, whether he can fairly stand upon this ground. Here, it is proper to remark, the question is not what rights he may have against the administrators of Clark Miles, or what right, under a proper application, he may have to Holbrook’s note of $1,250, and the mortgage given to the administrators to secure it. The bill is not adapted to any relief he may be entitled to, as the equitable owner of that note, and sets up no facts laying the foundation for any such relief—and such facts, as do appear in the report of the committee on that subject, appear only as part of the defendant’s case; as going to show that no relief can be granted to the plaintiff as mortgagee, under the deed of the thirteenth of June, 1853. Has he, then, any rights as such mortgagee ? The facts, which appear in the report of the committee, are very voluminous, and it is unnecessary to enter much into detail, in respect to them. It is sufficient to say, that the plaintiff procured the notes and mortgage described in the bill, under such circumstances as to render it quite possible, not to say probable, that a court of equity would have compelled him to take back the property, for which the notes were given, and to give up his securities therefor. But on an application, by the overseer of Holbrook, to cancel the purchase out of which the claim originated, he refused to do so, and commenced suits on two of his notes which had become due, and soon after made a sham transfer of his notes and mortgage to Miles, but under such circumstances as effectually to deceive Holbrook and his overseer, as well as his own counsel, and all others, to whom the transactions became known, by inducing them to believe that Miles had pur*465chased the claims for a valuable consideration, and was, therefore the equitable owner of them. Under these circumstances, Miles died, and administrators were appointed on his estate, who, supposing the notes belonged to the estate, treated them as part of it, and though notified by Bassett that they belonged to him, yet for some reason, they did not believe it, and finally, in consequence of being threatened with proceedings to contest the validity of the notes, on the ground of fraud in procuring them, and of the incompetency of Holbrook, and to avoid litigation, the administrators made a compromise, and settlement with Holbrook, he acting by the advice of his overseer, under which the original notes were given up, and discharged, and, in consideration thereof, Holbrook executed his note for $1,250, and secured the same by a mortgage of the premises, described in the bill, together with certain other real estate not included in the first mortgage. Neither Holbrook, nor his overseer, had any knowledge that the title of Miles to the notes and mortgage, or that the validity of the assignment to him, was questioned by any one. But they both acted in the utmost good faith, in the belief that the notes belonged to Miles’ estate, by virtue of the assignment to him, and, as part of his estate, that his administrators had full authority to settle any disputed claim in respect to them.
These are but a few of the facts in the case, but they are, we think, sufficient, with such others as will incidentally be noticed hereafter, to show that as between the plaintiff and Holbrook, the plaintiff is estopped to deny the validity of his assignment to Clark Miles; and that the assignment operated, not merely as a power of attorney which was revoked by the death of Miles, but as a transfer of such an interest in the notes and mortgage, as on his death, was sufficient to enable Holbrook, who had no knowledge that the plaintiff claimed any interest in them, to make a valid compromise in respect to them with the administrators ; and as Holbrook has acted in good faith upon the title, which the conduct of *466the plaintiff induced him to believe the administrators had, he ought now to be protected in the rights, which he supposed he acquired under his compromise with them. No one would have questioned the validity of a settlement with Miles, before his death, whatever might have been the secret agreement between him and the plaintiff; and as one great object of the assignment was to induce Holbrook to believe that the beneficial interest in the notes was intended to be conveyed by it, and as such an interest would of course vest in administrators, on his death, and as the instrument itself was adapted to the transfer of such an interest, and was an improper instrument to be used as a mere power of attorney, we think that the plaintiff has no right to complain, so far as the rights of third persons, acquired under it, are concerned, because they have acted as he intended they should think they had a right to act. As between Miles and the plaintiff, the assignment may be admitted to be a mere power of attorney, which was revoked by the death of Miles, and, therefore, conferred upon his administrators no interest in the subject matter. But it was more than that upon its face, and was purposely made so in order to induce others to believe that the debt was absolutely assigned, so as to have become the property of the assignee. How then can the plaintiff be in a better condition than the owner of property who stands silently by, and and sees it sold to a bona fide purchaser, without giving any notice, or intimation, of his title 1 Yet nothing is better settled, than that such acquiescence will preclude the owner from afterward asserting his title.
But it is claimed that Holbrook has not been induced to change his position, in such manner as would operate to his injury, if the settlement is treated as void, because, it is said, he has not been deprived of any defence he might set up to the notes in the plaintiff’s hand. We do not think that this is the true test, to determine whether he would be injured by suffering the plaintiff to treat his assignment as a power of *467attorney merely. Holbrook has been induced to forego his right to bring a bill in equity to set aside the whole transaction with the plaintiff by which he became the purchaser of property he did not need, and which the committee say, it was improvident in him to purchase; and although there may not enough appear in the present case to show that he could have succeeded in such an application, it is still quite obvious from the finding, that he had, at least a very plausible ground for making such an application. He has also been induced to mortgage other property, not conveyed to him by the plaintiff, to secure his note to the administrators of Miles. And in addition, he has, by a fair and equitable compromise and settlement of the controversy, avoided the necessity of an expensive and troublesome litigation. It appears to us, therefore, that it may fairly be said that he would be materially injured, by suffering the plaintiff now to treat his assignment as a mere power of attorney.
For these reasons, we think that the plaintiff is not entitled to a foreclosure, under his mortgage of the thirteenth of June, 1853, and as this is all that his bill enables him to ask, the superior court was correct in dismissing it, and there is no error in the judgment complained of.
In this opinion the other judges, Storrs and Ellsworth, concurred.
Judgment affirmed.