A rehearing was granted in this case upon petitions therefor on the jiart of T. B. Ellis, Cable, and Sumner & Co. We have carefully gone over the case again with an attentive consideration of the additional arguments which have been respectively presented, but fail to perceive sufficient reason to change the conclusion at which we before arrived, and must still adhere to our former opinion, save in the following particulars.
It was there said, after providing that Sumner & Co. should be first paid, and Cable next, to the extent named, “ Then T. B. Ellis should be paid the amount of his paid-in interest. Any surplus remaining should be paid over to Sisson, as the owner of the equity of redemption.”
At the time of the making of the contract of September 30, 1858, there were outstanding in the hands of Reynolds and Ely the first two notes in the series of notes amounting to the sum of $14,989.54, which the Waugh and Ellis mortgage was given to secure, said two notes having been assigned by Waugh to Reynolds and Ely. These two notes appear to have been paid by T. B. Ellis to Reynolds and Ely subsequently to September 30, 1858. In making distribution of the proceeds of sale, we are of opinion the amount of these notes thus paid after September 30, 1858, should be added to the claim of T. B. Ellis to be paid next after Sumner & Co. and Cable, and before the payment of anything to Sisson. As we view it, it was the intention of the contract of September 30, 1858, that T. B. Ellis should be indemnified against the Waugh and Ellis mortgage, and any payment, made by him on the mortgage debt subsequent to that date should be refunded to him by Sisson before the latter receiving anything from the sale of the mortgaged property.
It is claimed that the same should be the case as to a payment of $811 made on one of the mortgage notes, September 8, 1858. But we can not extend the indemnity beyond the terms of the contract, and must hold it to apply only to the mortgage as then, at the date of the contract, existing, and not to cover any previous payment on the mortgage debt, but only subsequent ones.
In the former opinion there is this remark: “ Of course all that has been said in regard'to the priority of Sumner & Co. is to be confined to the amount of the proceeds of the mill and mill lot;’’ in respect to which, in the petition for rehearing of T. B. Ellis, it is said “this modification, could do Ellis no harm if the mill and mill lot would sell for enough to satisfy the Sumner & Co. claim. If they do not sell for that amount, then Ellis would.be greatly prejudiced.” The opinion may have been misapprehended in this respect. We do not regard that Ellis would be prejudiced if the mill and mill lot should not sell for enough to satisfy the Sumner & Co. claim.
We hold that Waugh, by his written representation in respect to the Sisson mortgage, is himself estopped to deny it to be a valid mortgage, and should be held to make it a good and valid mortgage so far as he may, to Sumner & Co.; and that is here done by allowing to Sumner & Co., instead of to Waugh, the avails of the sale of the property embraced in the Sisson mortgage, viz., the mill and mill lot, and the exhaustion of that satisfies and ends all claim of Sumner & Co. with respect to the Sisson mortgage, and which is all the claim they have to assert in the present proceeding.
It is strenuously insisted that Sisson, as against Waugh, should be allowed for all payments made by him of indebtedness of Waugh, and Waugh and Sisson, amounting to some $7,000. If what was before said in that regard is not to be accepted as a satisfactory answer upon this point, we deem it sufficient, further, to remark that the proof shows a full settlement was had between Sisson and Waugh with respect to such payments, and a small balance found to be due in favor of Sisson, which Waugh paid and took a receipt in full, and was so judicially determined in a suit at law brought by Waugh against Sisson in the district court of Douglas Bounty, Nebraska, where such payments were pleaded in set-off by Sisson.. We find nothing in the relation of parties which should have precluded the making of such settlement.
As Waugh, on October 11, 1859, under the advice of counsel, made an indorsement of $3,502.52 on one of the mortgage notes of T. B. Ellis to Waugh and H. B. Ellis, as being for store and chattels x’eturned to T. B. Ellis October 1, 1858, it is claimed on the part of Eathbxxxx that thereby T. B. Ellis received pay for the goods, axxd that a personal decree against Rathbun for the valxxe of the goods in favor of Ellis would be a double payment to the latter for the goods. But by the contract of September 30,1858, as we find, Ellis was to be paid for his “paid-in interest” in the property, including the store, $10,000 more or less as it should appear to be, and, in addition thereto, his mortgage to Waugh and Ellis was to be discharged, or he indemnified in respect thereto ; so that any satisfaction in part or whole of that mortgage debt would be no payment of the sum contracted to be paid for the goods. If, upon the reference to the master, it should be found that the “ paid-in interest” of T. B. Ellis in the store was less than the amount of the goods received by Sisson and Bathbun, then any personal decree against Bathbun should only be to the extent of such paid-in interest in the store.