I concur in the opinion of the chief justice as to the two first payments made on the note to Webster signed by the mortgagees. But I disagree with the majority of the court as to the last payment, bolding that the mortgage ought not to be enforced even for that amount, and that the lien thereof is entirely extinguished. Farmin testifies as to the time of making the assignment: “It was after the Webster debt had been paid in full. I think it was three or four days after Webster’s debt bad been paid. It [the assignment] was delivered to me personally.” If the mortgagees had themselves paid the last installment to Webster, they would then have had a right to enforce the mortgage to the amount of such payment; but they never paid any part of the debt, %o indemnify them against which the mortgage was given, and consequently never had any right to foreclose the mortgage, nor any interest which they could transfer to Pelton, certainly ’none after the debt to Webster was paid by Farmin, their principal, or by Pelton at his request. If Pelton desired to keep alive and avail himself of the mortgage as a security to reimburse hiipself for the money advanced, he should have first *73arranged with the mortgagees that they, or be for them, should pay the money to Webster, and that, in consideration of such payment for them, they would assign him the mortgage. But without any agreement or understanding with the mortgagees, the debt to Webster was paid by Farmin, as he says, with Felton's money. Such payment instantly extinguished, the debt and the mortgage lien. The subsequent assignment by the mortgagees, or any agreement they could make, could not revive the lien as against a prior judgment creditor of Farmin, There is no pretense for saying that Farmin acted fraudulently, or with any intention to injure Pelton. The most that the. evidence tends to prove is, that Farmin made a mistake, not of fact but of law. And the plaintiff is entitled to no relief on that account I am of opinion therefore that the judgment should be reversed, and the complaint dismissed.
By the Court. — Judgment reversed, and cause remanded with instructions that judgment be entered in favor of the plaintiff for $138, and interest from May 12th, 1854.