Page:North Dakota Reports (vol. 1).pdf/157

 of the recorded mortgage to Beecher & Dean. Beecher, being the sole owner of this mortgage by assignment from Dean of his interest, transferred the mortgage to George S. Barnes on the 3d of September, 1885. Barnes paid full value for the mortgage, and bought it in good faith, relying, through his counsel, Hon. A. D. Thomas, on the apparent satisfaction and payment of the lost mortgage, as evidenced by the instrument from plaintiff to McKnight. The record disclosed that the first mortgage had in fact been paid and satisfied, and therefore that the mortgage which he was about to purchase, although formerly a second mortgage, had become, by this instrument, a first lien on the premises. It is immaterial whether this instrument was such a paper as was entitled to record, or whether its record operated as constructive notice. Judge Thomas and Mr. Barnes agree that the whole matter was left to the former to determine what was the condition of the record, and Judge Thomas positively swears that he in fact saw and examined the record of this instrument, and was satisfied from such examination that the lost mortgage had been satisfied, and that the mortgage which Barnes contemplated purchasing was a first lien on the property; and he so advised Mr. Barnes. The finding of the court in this regard is amply sustained by the evidence. If the instrument was calculated to and did mislead Judge Thomas, who was attorney for Mr. Barnes in the transaction, the case is the same as though Barnes himself had been personally misled. It is insisted that Barnes took subject to all equities as against the mortgage in the hands of Dean, who, it is unquestioned, held the mortgage subject to the right of the plaintiff to have the lost mortgage reinstated and established against him (Dean) asa prior lien. But a paramount principle makes ineffectual this doctrine under the facts of this case. Equitable estoppel seals the plaintiff’s lips, and declares to him that he shall not invoke the rule that the purchaser must abide by the case of the person from whom he buys, because, by his written declaration that the lost mortgage had been paid and satisfied, he inveigled Barnes into purchasing the Beecher & Dean mortgage as a first lien on the property. He held out to him that it was a first lien, because he asserted that