The facts in this case are quite peculiar. The action is brought to recover back money paid by the plaintiff to the defendants, upon a promissory note given by him to them upon the sale and assignment of a chattel mortgage by the latter to the former. The note was given for $65, payable one year from its date with interest, and was paid and taken up when it became due. The complaint alleges that the defendants procured the note of the plaintiff by certain false and fraudulent pretenses, without specifying what they were.
From the evidence upon the trial, however, it appears that the fraudulent pretenses were claimed to consist in the allegation and claim of the defendants, that the mortgage which was assigned by them to the plaintiff, and for which the note was given, was a valid subsisting mortgage at the time, whereas, as the plaintiff now claims, it had before that time been paid and extinguished. The defendants, at the time they assigned the mortgage to the plaintiff, were the assignees of it from the mortgagee. At the time it was assigned to them there was due upon it to the mortgagee $101.68. This amount the defendants paid to the mortgagee, and took his assignment. There seems to be no dispute that this amount was
Certainly they were in no worse situation, after taking the assignment, than the mortgagee would have been had he made the same purchase at the sheriff’s sale. Suppose the mortgagee at that sale had been the purchaser instead of the defendants, subject to his own mortgage, would that have satisfied and extinguished it as respects the other property contained in it? It seems to me not. Because his legal title was then absolute as to all the property, and buying in the equity of redemption of a portion only, could not upon any legal principle, so far as I ‘can see, extinguish such legal title to the other property. It certainly could not, unless such purchase at the sale under the execution can be regarded in law as the foreclosure of the mortgage; and not then even, unless we can- go further and hold that the actual value of the property so purchased, over and above the amount bid for the right of redemption, is equal to the amount due upon the mortgage and is legally applicable as a payment on the mortgage to that amount. This, I think, no one is prepared to assert. It cannot be seen or known what the mortgaged property bid in at the sheriff’s sale would have brought had it been sold on the mortgage. I conclude, therefore, that inasmuch as the mortgage had never been paid nor foreclosed, nor any power contained in it ever been exercised at the time
There are other grounds upon which, as it seems to me, the right of action must fail, even should it be held that the mortgage was in law satisfied. The defendants asserted their claim to the plaintiff’s horse, under the mortgage, which claim the. plaintiff at first disputed, but after investigating the whole matter concluded to compromise the claim by buying the mortgage and giving his note for the amount agreed upon, payable in one year, which he voluntarily paid to the defendants when it became due. If it had turned out that the mortgage was not at the time a valid subsisting mortgage but had by operation of law been extinguished, by reason of the purchase at the sheriff’s sale, I do not see what right of action the plaintiff could now have to recover back this money. In that view it was a mere mistake in matter of law. There is no evidence to show that the defendants did not honestly suppose and believe that the mortgage was good as against the property which the plaintiff held, that was contained in the mortgage. The plaintiff acquainted himself with all the facts, compromised the claim and paid it voluntarily to the defendants at the end of the year. Clearly he could have no right of action upon that state of facts. The right of action here is not at all affected by the fact that the sheriff sold .two horses subject to the mortgage, when in fact the mortgage covered only one of them. The plaintiff acquired no rights by that mistake of the sheriff,
There is therefore no foundation for the action, in any point of view, and the judgment of the county court and of the justice must be reversed.
E. Darwin Smith, Welles and Johson, Justices.]