Page:Federal Reporter, 1st Series, Volume 10.djvu/875

 DICKINSON i?. WOKTHINOtTON. 863 �' 3, WM regard, however, to the $2,000 held by said Samuel W. Woithington as trustee for Mrs. Thompson, and in like manner in- vested by him in a mortgage of part of said lands, I do not find in the will the same limitation upon the power of the trustee to release the mortgage. The trustee having made the loan and taken the mort- gage to secure it, and the loaH being long overdue, he would, in the absence ofsome express restriction, have the right to receire the money, and the power to execute a release of the mortgage. He did execute a proper formai release, (Exhibit V,) in which he recites that the entire loaii and the interest thereon had been fully paid, and that the mortgagor was entitled to have the land released. Upon this release the subsequent encumbrancer testifies that he relied, and as there is no evidence of facts which should have put him upon inquiry as to thetruth of fche recitals, I am of opinion that he had a right to rely upon it. �It is urged that as it was recited in the mortgage that a promissory note had beeh made and delivered by fche mortgagor to the trustee for the $3,000 loaned, and as it does not afSrmatively appear that, when the release was executed the note was given up to be canceiled, and as it is now known that the loan was not in fact paid, that the presumption is that the note was not surrendered; and it is con- tended that as the mortgage was merely security for the note, the release without a surrender of the note was ineliectual, and that the respondent Wight was guilty of laches in not having required the production and surrender of the note. It is true that if a promissory note, secured by a mortgage, has been passed by the mortgagee to a third party the subsequent release of the mortgage by the mortgagee without surrender of the note is void, upon the principle that the assignee of the note is entitled to the security given for its payment, and that the assignaient of the debt operates as an assignment of the mortgage. In this case, however, it does not appear what has be- come of the note. It could not have been assigned, and, if in existence, it must have been in the handsof the trustee at thetime he executed the release. The presumption is that he surrendered or canceiled it. Nor does it appear to me that the fact that this release, which bears the same date as the mortgage to Wight, was not acknowledged by the trustee lintil the next day, alters its efifect. It is clear from Wight's testimony that it was a condition precedent to the loan of the money by him that this release should be first executed and the prop- erty relieved from the mortgage thereby intended to be released; anid ��� �