The opinion of the court was delivered by
Royce, J.The report finds that the mortgage which the defendant Oscar E. Burnham claims should have precedence to the second mortgage described in the petition, was never executed by Mary J. Burnham; that the petition brought by Oscar E. Burn-ham to foreclose that mortgage was never in fact served on Mary J. Burnham ; and that she did not know that any such proceeding had been instituted, until the equity of redemption upon the decree that Oscar E. had obtained had expired. The mortgage executed by George W. and Mary J. Burnham to the petitioner, and which is now'sought to be foreclosed, conveyed to the petitioner all the interest that Mary J. had in the premises described. Oscar E. Burnham was not entitled to a decree against Mary J., on the mortgage he was seeking to foreclose, for the reason that she never executed it. The petitioner knew at the time he took the mortgage from George W. and Mary J. Burnham, that Mary J. did not execute the mortgage which Oscar E. subsequently foreclosed. The petitioner was made a defendant to the petition brought by Oscar E., in which he obtained his decree, and did not appear and defend the same, because he relied upon representations made to him by the said Oscar E. at the term of court when such defence might have been made, that, if he should get the property, he would pay the petitioner his claim. Oscar E. now *24claims that the decree thus obtained by him is in equity a bar to the enforcement of the petitioner’s claim secured by his mortgage. The petitioner, as we have seen, was induced to abstain from availing himself of what, upon the facts found by the referee, would have been a full defence, by the representations made to him by Oscar E., and he now insists that the decree is a technical bar to the right of the petitioner to have the representations thus made, kept and performed. While claiming the benefit of the decree, he is estopped from denying his liability to fulfill the obligation that he assumed as a condition to obtaining it.
Decree affirmed, and cause remanded.