The opinion of the court was delivered by
Manning, C. J.The plaintiff has injoined the seizure and sale of a house and lot in this City under a mortgage, and to pay four notes secured thereby. The sale under which she bought was provoked by the.representative of her first husband’s succession to pay debts. That representative was his daughter and sole heir. The settlement of the debts appears to have been made in an irregular manner. The widow and purchaser was required to furnish the money necessary for that purpose, and the sum she thus furnished exceeded the third, which the terms of sale required to be paid cash.
Bridget Reardon is an ignorant woman, and was assisted and advised in these transactions by her kinsman, Daniel Moriarty. Her husband was dead, and his succession belonged to her, as surviving widow in community, and to his only child, a daughter by a previous marriage, in equal shares. There were some debts to be paid. The property consisted of a lot and improvements in this city, appraised in inventory at $5000, furniture valued at $149, and $60 cash. A sale was had to pay debts, and to effect a partition. The lot and improvements brought $7,750.00. One third of this price was, by the terms of sale, to be paid cash — the residue in one and two years. The widow bought, and the cash was paid, and this cash payment was sufficient, or nearly sufficient, to pay the debts. At any rate the heir was not called on to pay any debt, or to contribute to such payment. She received one half of the credit instalments without diminution. Two notes, representing that moiety, were delivered to the daughter.
The plaintiff should not have executed any other notes than these two. She owned as much of the proceeds of sale as the daughter. There was no obligation upon her to give notes for what was her own, but she did give them, as she would no doubt have signed any other notes that Moriarty told her to sign. He took possession of them immediately — afterwards bought the two others from the daughter— and now attempts to sell the property under the mortgage securing the payment of all four notes. The plaintiff enjoins, and seeks legal protec*121tion from the rapacious pursuit of him, who. was instrumental in imposing upon her ignorance, and obtaining her signature to obligations for money that belonged to lier. Were the notes in the hands of innocent third persons, she would be remediless, but Moriarty has them, and brings them into court, and we can wrest them from him.
There is no doubt that Moriarty paid a part of the money for the plaintiff. He gave his check for the whole, but she had put him in funds certainly to the amount of a thousand dollars, besides making sundry payments of small sums then or thereafter. He has his action against her for the money thus loaned to her, or paid for her benefit, and to that action he should be remitted for its recovery. Under no aspect of the matter can he be justified in taking possession of the two notes, which represent the plaintiff’s half of the proceeds of sale, and treating them as his own. She did not pledge them to him, nor were they deposited with him as collaterals, nor do they represent the sum loaned to her. It was perfectly competent for him to have taken her note for the sum actually loaned, and to have had it secured by mortgage, and that was the natural, proper, and straightforward form in which the transaction should have been clothed.
Besides, it is apparent that the plaintiff has given the two notes that went into the possession of the heir, for a larger sum than was ■coming- to that heir. The account can be thus stated:
Assets; — proceeds of sale of lot.............................$7,750.00
Movables and Cash............................... 209.50
$7,959. 50
Claims; — On tableau.............................$2,802.60
Yatter & Blanc......................... 128.98
Funeral expenses...............!....... 178 3,104.58
$4,854.92
Share of each..............................$2,427.40
The notes executed by the purchaser, who was the widow in community, and which were delivered to the heir, were for $2583.33 and thus exceeded by $155.87 the sum to which she was entitled. Besides, the widow was made to pay commissions on the value of the whole property, instead of the succession’s half of it, and this excess of payment is $96.87. These two sums must be credited on the notes Moriarty acquired from the heir, and we justify this distinctly upon the ground that Moriarty was the person who instigated the settlement in the manner in which it was made, and conducted it for her.
It is therefore ordered, adjudged, and decreed that the injunction is perpetuated as to the two notes executed by the plaintiff for her-own *122half of the proceeds of sale, and that the other two notes be credited’ with $252.71 of same date as the notes, reserving to the defendant his-right of action against the plaintiff for the money loaned to her, or paid for her and not repaid to him, and that the defendant pay all the costs-of both Courts.