The opinion
McLennan, J. (dissenting):
I am of the opinion that the evidence clearly establishes that at the time the note for $150 was given by Brown & Mason to Conway & Woodhead, Conway & Woodhead were the owners of the mortgage in suit, and that it was understood by them that the money with which to pay said note was to be obtained by Brown & Mason from plaintiff’s testator, and it was agreed by Conway & Woodhead that upon payment of such note to them they would assign the mortgage to plaintiffs’ testator ; that the money to pay the note was *401 obtained from plaintiffs’ testator by Brown & Mason, upon the express agreement with him that the mortgage would be assigned to him by Conway & Woodhead as security for the payment of the money so loaned; that under such circumstances, the fact that Conway & Woodhead, the owners of the mortgage, in violation of their agreement, regarded and treated the notes as payment of the mortgage, did not inure to the benefit of the defendant Melchert D. Mason, the mortgagor, and operate as a cancellation of the mortgage, or in any manner affect the rights of the plaintiffs, and that, therefore, the plaintiffs are entitled to maintain this action and to foreclose the mortgage in suit for $150, the amount of money so loaned by plaintiffs’ intestate.
Judgment affirmed, with costs.