Opinion
January 8, 1906.
A.R. Gibbs and Wood D. Van Derwerken, for the appellant.
Hubert C. Stratton and Irving J. Tillman, for the respondent.
When the Culver mortgage was delivered to Jewell, the chattel mortgage was not surrendered. The fact that the Culver mortgage was an actual lien upon less land than was understood and was, therefore, of less value did not come to the knowledge of the defendant, as the assignee of Jewell, until about the time of the foreclosure. Upon his representation of that fact to the plaintiff the plaintiff recognized the chattel mortgage as an existing liability and agreed to pay the balance thereof, over and above the proceeds of the Culver mortgage, and requested the foreclosure of the Culver mortgage. Under such circumstances it is wholly unnecessary to return the Culver mortgage. Upon the evidence we are of opinion that the Culver mortgage was not in fact substituted by the parties for the chattel mortgage, and, therefore, that the chattel mortgage was still a lien upon the property purchased by the plaintiff.
The judgment should, therefore, be reversed upon the law and facts and a new trial granted, with costs to appellant to abide event.
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.