Page:Federal Reporter, 1st Series, Volume 10.djvu/873

 DICKINSON V. WORTHINGTON. 861 �4. SAMB — WnEN iNEFFECTUAIi. �A release of a mortgage without a surrender of the note Is ineftectual. 80, ■where the note secured by a mortgage is passed to a third party, a subsequent release of the mortgage by the mortgagee, without the surrender of the note, is void, as the assignment of the note operates as an assignment of the mortgage. �5. SAiiE OF Land itndbr Okdeb of Coubt — Lien for PtmcHASB Monbts. �Where the trustee was authorized by the court to make a sale of certain land and simultaneously invest the purchase money in a mortgage on the same land, and hesold the land under the order of the court, but received no consideration, and no mortgage was ever given, the trustee had no authority,without a f urther order of the court, to afterwards receive the purchase money in cash, or make a deed for the land; and the proceedings in the court ordering the sale and the investment of the purchase money were suiBcient to put any one dealing with the property upon inquiry as to why the mortgage had not been given. The lien for the purchase money was not lost by the execution of the deed by the trustee. �Morris, D. J. The principal questions in this case arise from a conflict between the claims of persons beneficially interested in cer- tain trusts created by the will of Samuel Worthington, late of Balti- more county, deceased, and the alleged prior.rights of a mortgagee to ■whom certain lands, devised by said testator, have since bis death been conyeyed. �The solution of these questions requires me to interpret the provis- ions of the will, and to pass upon the legal effect to be given to certain conveyances executed by parties interested thereunder ; but as all these documents fully appear in the proceedings, I shall not attempt to make a statement of their contents or of the allegations of the Mil, and will proceed to consider the issues which have been made and argued. �1. As to the paper dated the seventh of January, 1876, purporting to be a release from Mary E. L. Dickinson to Samuel W. Worthington, (Exhibit T.) The testator gave |7,000 to Samuel W. Worthington to be by him invested and held in trust for the use of Mary E. L. Dick- inson for life, and after her death for others. This $7,000 was declared to be, until paid, a charge upon the lands which were devised to his sons, into whosesoever hands the lands should go. This sum of $7,000 bas never been paid or invested, but Samuel W. Worthington procured from Mrs. Dickinson the paper called a release, which is designated in these proceedings as Exhibit T, and had it recorded; and it ap- pears that subsequent encumbrancers have relied upon this paper as releasing the land from the payment of this charge. �The will does not expressly authorize any one to give an acquit- tance for this sum so charged upon the testator's land. The utmost ��� �