OPINION ON REHEARING.
Beck, J.— -A rehearing was ordered in this case, upon the petition of defendants, and thereupon the cause was again fully and ably argued by the counsel of the parties. Upon a careful reconsideration of the case we are constrained to adhere to the conclusions announced in the foregoing opinion. The earnestness and ability displayed by defendants’ counsel upon the re-argument demand that the points made by them be, at least, briefly noticed. We will, however, first add a few thoughts, in addition to the arguments of our former opinion, which, we believe, support its conclusions. These conclusions are based upon the peculiar language of the assignment. The assignors transferred their “ right, title and interest ” in the judgment “ without recourse.” The words used clearly indicate the absence of any intention to warrant the validity or value of the judgment or that it was collectible. The word “title” relates to the assignors’ ownership of the judgment — that is, by the use of the word they indicate the intention to transfer whatever property they may hold in it. The words “right and interest” relate to the extent of that ownership or property. By the use of these words the assignors undertook to transfer whatever of value they owned or held in the judgment. The thing transferred was the debt, the chose in action, represented by the judgment. The words used in the assignment clearly indicate that the assignors shall not be liable for any failure of title to or diminution of interest in the debt. The use of the words “ without recourse ” gives additional force to this view. The phrase must be understood in connection with the other language of the assignment and as having been used in reference to it. The fair meaning, of the assignment *246is, that the assignees shall not have recourse upon the assignors on account of any failure of title or diminution of interest in the judgment.
Defendants’ counsel urge that, because the note and mortgage, the foundation of this suit, was given for the judgment, which could not have been enforced to the full extent of the amount as shown by its face, therefore they cannot be enforced for an amount greater than actually remained unpaid on the judgment. But this argument leaves out of view the fact that the note and mortgage are new contracts, founded upon the transfer of the judgment, which is a sufficient consideration to support them.
Counsel for defendants enter into an extensive examination of the authorities to determine the effect of an assignment of a judgment, and conclude that, though it be made without recourse, yet the assignor is held to warrant that it has not been paid. This may be admitted, and yet the conclusion of the counsel in this case would by no means follow. The qualifying words used in the assignment, namely, “ all my right, title and interest,” as we have above pointed out, express a different contract. These words relate to the thing assigned and express a contract to the effect that whatever property, right or interest the assignors held in the judgment was transferred, and no more. As the extent of that property or interest is not determined by the assignment, but, left indefinite and uncertain, there could exist no warranty relating thereto.
It is further claimed, that as there was a mutual mistake as to the extent of the thing sold — the judgment — equity will relieve the party injured thereby. But how can we say there was a mistake as to the extent of the thing sold, when by the very terms of the assignment it is left uncertain and undetermined ? The language of the contract of the assignment plainly indicates that the value of the judgment was not understood as being within the stipulations of the contract. There could have been no mistake as to *247the extent of the thing sold, for it must be admitted that the assignee takes by the assignment precisely what is therein transferred, namely, all the assignors’ “ right, title and interest ” in and to the judgment. But it is claimed that both the parties supposed that no payment had been made on the judgment. Let this be admitted. Why were the limiting words used if the assignors intended to warrant that the whole amount of the judgment was unpaid? We must give these words their proper force, and are therefore constrained to conclude that the assignor intended to protect himself from just such a contingency as the part payment of the judgment without his knowledge.
The facts of the case, independent of the terms of the assignment, support our conclusions. That the judgment was a valid lien upon property of sufficient value to secure its collection was a fact well known to both parties. Indeed, for that reason was it purchased by defendant. The only question as to the judgment that could have arisen in the minds of the parties must have related to the assignors’ title, property or interest therein. To these, therefore, were the words of limitation in the assignment intended to apply. Neither party could have had a motive to intend the application to the collectible character of the judgment to its full extent.
Adhering to our former opinion, we adjudge that the decision of the district court be
Reversed.