The judgment in this case must be affirmed, for the reason that the proof wholly fails to support the charge of fraud in the complaint.
The only fact upon which fraud is predicated, was the omission of the-defendant to inform the plaintiff of the existence of the prior mortgage. But there was no misrepresentation, no question asked, and it does not appear that Stephenson knew that the plaintiff was ignorant of that fact, and, in consequence of that ignorance, was acting as he would not otherwise have done. On the contrary, the fact that Stephenson had taken the second mortgage as a security for his own debt to that amount, that he and another witness swear that the property was worth, at the time, the amount of both mortgages, and that in transferring the second mortgage to the plaintiff he indorsed the note, so as to remain personally liable, if properly charged as indorser, and his subsequent offer to reconvey the property for what he had paid, and pay for his improvements, so effectu*81ally rebut all suspicion of any fraudulent concealment or intent as to leave no ground whatever upon which to sustain the action.
By the Court. —The judgment is affirmed, with costs.