
    Henry Barnard v. Andrew T. McReynolds and others.
    The mortgage sought to be foreclosed by this bill is held to have been satisfied by the assignment and subsequent payment of another mortgage.
    
      Heard October 16.
    
    
      Decided January 7.
    
    Appeal in Chancery from Wayne Circuit.
    This was a bill to foreclose a mortgage given by McReynolds and wife on May 26th, 1851, to Van Dyke & Emmons, and afterwards, by mesne assignments, transferred to complainant. The defense was that defendant had transferred to Van Dyke, in his lifetime, a mortgage from Rollin C. Smith to apply in payment of so much of the mortgage in question, and had otherwise paid the residue. The controversy was entirely one of fact, whether the assignment of the Smith mortgage was to apply, when paid, in part payment of the mortgage in suit, or was a separate and distinct transaction. The decree below dismissed the bill, and the complainant appealed.
    
      Ed. E. Kane and Samuel T. Douglass, for complainant.
    
      George S. Swift, for defendants.
   Christiancy, J.,

with whom Cooley, J., concurred, delivered an opinion holding that there was a preponderance of evidence in support of the defense; that the Smith mortgage was received by Van Dyke to be applied, when paid, upon the mortgage in suit, the whole of which would have been thereby paid, with the other indorsements upon it; that Van Dyke did not purchase and pay an independent consideration for the Smith mortgage, and that, had he been living, or had the executors of his estate possessed his knowledge of the whole transaction, that mort gage would have been applied upon, and would have satisfied, the mortgage in question.

Grates, Ch. J.,

delivered a separate opinion, arriving at the same result.

Campbell, J.,

delivered a dissenting opinion, holding the evidence insufficient to support the defense.

Decree affirmed, with costs.  