
    DANIEL EATON vs. ENOCH GEORGE.
    
      A. having given B. several notes of hand, and conveyed to him his farm in mortgage secure the payment of them, afterwards conveyed the same farm to C. absolutely ; and 0. having paid to B. the amount of the notes, and taken an assignment o/ rhe n.ougxae, brought a suit in B.'s name against JL upon the norf\.. H was held that the notes must be considered as paid, and that no suit could ne maintained upon them against A.
    
    This was an action of assumpsit. The first count was upon a note of hand made bj the defendant, dated March 31, 1815, for $52, payable to the plaintiff, or order. The second count was upon a note of the same date, made by George, for $62 50, payable to the plaintiff, or order.
    The cause was tried here at November term, 1819, upon the general issue, when it appeared in evidence, that these two notes with others amounting in the whole to about $200, were given by the defendant to the plaintiff for a farm conveyed bj Eaton to George ; the payment of all which notes was secured by a mortgage of the farm. The defendant, being in debt, after the mortgage was given to the plaintiff, made ah absolute conveyance of the farm to Harris and Russell, two of his creditors. Russell afterwards conveyed his interest to Harris, who conveyed the whole farm to one Flanders. Flanders, at the time he took the conveyance, knew of the existence of the mortgage, but was told by Harris that part of it was paid, and that George could be compelled to pay the remainder. ⅜ December, 1818, Flanders went to Eaton and paid him the amount due upon the notes, and took an assignment of the notes and mortgage. He then caused this suit to be brought in Eaton’s name for his own benefit.
    A verdict was taken for the plaintiff by consent, subject to the opinion of the court upon the foregoing facts.
   Richardson, C. J.,

delivered the opinion of the court.

There is no foundation for this action. Flanders, having George’s right in equity to redeem the land, paid to Eaton the amount due upon the mortgage, and took an assignment of it. Flanders thus became seized of the land absolutely in fee simple, and the mortgage was discharged. Andas Flanders, in redeeming the land, stood in George's place, the payment to Eaton by Flanders is as much a payment of the notes, as if it had been made by George himself; and the notes having been once paid, it is clear, that no action can be maintained upon them.

If Harris conveyed to Flanders the mere right to redeem the land, without any covenant against incumbrances, whatever price the representations of Harris may have induced Flanders to pay for the right to redeem, Flanders is without remedy, unless the representations of Harris were fraudulent. If George conveyed the land to Harris and Russell, with a covenant against incumbrances, he may be compelled by an action in their names to pay the amount of the incum-brance. But for aught that appears in this case, he may have conveyed nothing to Harris and Russell but the mere right to redeem ; in which case it would be most manifestly unjust to compel him to furnish those who had bought the naked right to redeem, with the money necessary to redeem the land.

We are, therefore, of opinion, that the verdict must be set aside, and a new trial be granted.  