The opinion of the Court was delivered by
Kennedy, J.
The letter of Mr Tilghman was very properly rejected. It at most would only have tended to show the willingness of Mrs Pemberton to give releases to those who had bought parts of the lands mortgaged to her, from Joseph Fox, upon their coming forward and paying to her the money, that they were to pay to Fox for the lands, until her mortgage was paid off; but unless it had been shown also, that she had released Samuel Culp’s land by carrying such proposition into effect, it could not avail the defendant in this case any. thing, to show that she was at all times willing to do so, without showing that such proposal by ber had been carried into execution. She was not bound to acquit any part of the lands included in her mortgage, until she had received the whole amount of the money due upon it; and even a promise made by her to acquit any part of the land, upon receiving part of the money due to her, would have been gratuitous, and without consideration; and therefore would not have been binding upon her, until she had received the money paid to her upon the faith of her promise. But as nothing of this kind was pretended, it is evident that the testimony was unavailable and inadmissible.
The second reason cannot be sustained; and it appears to me that a moment’s reflection upon the nature of the obligation which the defendant’s intestate had brought himself under to the plaintiff, will be sufficient to satisfy any disinterested mind of the truth of this. He bound himself in the most express terms to keep the plaintiff “ clear and harmless of the mortgage, so that he should receive no damage therefrom.” Now, if the mortgage money was unpaid at the time the defendant’s intestate thus bound himself, there was but one way of obtaining a complete indemnity for the plaintiff against the mortgage, which was, by paying' it; but if it was then paid, it would have been sufficient for the defendant’s intestate or his representatives, to show that in case the mortgage money should be demanded at any subsequent time, and it is only in the case of the mortgage having been paid or released by the mortgagee before it was sued, that the defendant’s intestate or his estate could have been injured or affected by the want of notice. The object of giving notice was, not that the defendant or his intestate might come forward and pay, but to show that the mortgage had already been *500paid or released. If, however, it was not paid or released, and there was really no defence that could be made against the payment of it, the intestate may be said to have neglected his duty, in not having paid, or otherwise procured payment to have been made; and he and his representatives, therefore, have no right to complain. On the other hand, if it were paid or discharged in any way, and the defendant, or his intestate in his life time, could have shown that, upon notice given to either, the most then that he ought to be permitted to claim from the want of notice would be, to show, as a defence to and discharge from the plaintiff’s claim in this case; that the mortgage was satisfied before the plaintiff’s land was taken in execution under it. This he was permitted to do by the circuit court, so far as he was able, and if he failed in it, the necessary conclusion is, that the mortgage was not paid or released in any way before that time ; and the defendant or his intestate, in contemplation of law, cannot be considered as having sustained either loss or injury by the neglect of the plaintiff to give notice of the suit upon the mortgage ; because if the intestate of the defendant had paid the mortgage off, as in effect he had bound himself to do, it must be presumed that Culp, the plaintiff, would never have been troubled with a suit upon the mortgage, or have lost his land by it.
The third reason of the defendant is the next in order to be considered. The covenant of Mrs Pemberton “ not to take in execution or levy upon Abia John’s one hundred and fifty acres,” part of the land included in the mortgage, has been treated by the defendant’s counsel as if it were a formal release of so much of the mortgaged premises from the lien of the mortgage. In form it is certainly not a release; but it is said that where an obligee covenants not to sue the obligor at all, he may plead it as a release. Hodges v. Smith, Cro. Eliz. 623; Smith v. Mapleback, 1 Turn. Rep. 446; Burgh v. Preston, 8 Turn. Rep. 486. But although he may plead it as a release, the authorities referred to show that it is not because it is in fact or in law a release that he may do so, but he shall be permitted to do so merely in order to avoid circuity of action ; that is, in effect, to set off the breach of the obligee’s covenant not to sue on the bond against his claim on it. See also White v. Dingley, 4 Mass. 433; Upham v. Smith, 7 Mass. 265; Sewall v. Sparrow, 16 Mass. 24. If it were properly and strictly a release, then a covenant not to sue one of two joint and several obligors would be a discharge of both, as a formal release certainly is. See 2 Roll. Mr. 412, G, pl. 4, 5; Clayton v. Kyneston, 2 Salk. 574; 2 Saund. 47, t, note per Sergeant Williams. But the law is not so where it is only a covenant not to sue one of two joint and several obligors; it is considered barely a covenant and not a release; and the obligee may still sue the other obligor. 2 Salk. 575 ; Lacy v. Kyneston, 12 Mod. 551; 2 Ld. Raym. 959 ; S. C. 2 Saund. 47, t, note; Wand v. Johnson, 6 Mund. 8 ; Shotwell v. Miller, 1 Coxe 81 ; Rowley v. Stoddard, 7 Johns. Rep. 207.; Chandler v. Herrick, 19 Johns. Rep. 129; Shed v. Pierce, 17 Mass. *501Rep. 623; Sewall v. Sparrow, 16 Mass. 24; Ruggles v. Patton, 8 Mass. Rep. 480. The defendant’s counsel, considering it as a release, have therefore likened the release of part of the land charged with the mortgage for the payment of the money, to the case of rent charged on three acres of land, where he who has the rent, releases all his right in one acre, and it is said that the release extinguishes the whole rent. 5 Bac. Mr. tit. Release, 694, 713. And the reason assigned for it is, because it all issues out of every part of the land, and it cannot be apportioned. Ibid. 713. But this cannot be said of. money, or a debt charged on land by a mortgage. For although the whole of the money is charged upon every part and parcel of the land embraced by the mortgage, yet if the land so mortgaged consists of several tracts or parcels, when the mortgage money comes to be raised by a judicial sale of it, under an execution sued out upon a judgment had upon the mortgage for that purpose, each tract or parcel must be sold separately; and no more of it can be sold than shall be found sufficient to raise the money claimed upon the execution; Hence it is clear that there is no analogy between the two cases, nor-do I think that the case before us can be, justly compared to any other to which it has been attempted to be likened. So that I am decidedly of opinion, that had Mrs Pemberton given even a formal release, instead of a covenant, it would not have extinguished her claim upon the residue of the land as a security for her money under the mortgage. In Hicks v. Bingham, 11 Mass. Rep. 300, where the mortgagee’of two parcels of land released one of them to the assignee of the mortgagor, it does not appear to have entered into.the mind of any one concerned in the case that it discharged the whole mortgage. Having now disposed of the reasons assigned by the defendant for a new trial, I shall proceed to notice those of the plaintiff.
The first is that the evidence of Solomon Figley, John Rupley and George B. King, was improperly admitted by the court. This I think was not so; for although the facts which they testified to, of themselves amounted to nothing, and could have no influence in determining the cause, either in favour of or against either party, yet as they were offered to be proved in connection with other circumstances, which were not provéd as alleged, tending in some slight degree to show collusion between Am Pemberton and the plaintiff in this cause, or that the plaintiff had conducted himself, in respect to the claim of Mn Pemberton on the mortgage, in such a way as apparently to prejudice the defendant, it would not perhaps have been right to have rejected the testimony: and as I feel satisfied that after it was given, it could have done the plaintiff no harm with the jury, the admission of it, therefore, would be no sufficient ground for granting a new trial, although it were clearly irrelevant.
The next and indeed the only reason among all that have been stated, for which we think a new trial ought to be granted, is, that the court was wrong in the rule which was laid down to the jury for *502ascertaining the amount that the plaintiff was entitled to recover. The court seems to have taken up the idea, in the hurry of the trial, that the defendant or his intestate might, if notice had been given by the plaintiff of the suit when it was commenced on the mortgage have settled and adjusted the claim in some way more favourable to his interest; and that he was injured to a certain extent through the neglect of the plaintiff to give such notice; and that a proportionable abatement of this claim ought therefore to be made. But certainly it was incumbent upon the intestate of the defendant to have informed himself, and to have known whether or not the mortgage money was paid ; and if not to have paid or settled it, and thus to have prevented the suit altogether from being brought upon the mortgage. The plaintiff by declining to give the notice, no matter whether wilfully or inadvertently, took upon himself the risk of the defendant’s not being able to .show that the mortgage was paid off or discharged, and nothing more; for if it was not, the neglect of duty was chargeable entirely to the intestate of the defendant, in not having discharged it before suit was brought upon it; but the plaintiff, by giving a notice to the defendant or his intestate, would have relieved himself from all responsibility in respect to the mortgage being paid or discharged, and have cast it entirely upon the intestate or the defendant; for if it had been paid, and the intestate or the defendant, after notice of the suit upon the mortgage, had failed or neglected to show it, and the plaintiff’s land had been sold as it was, the defendant would not have been permitted on the trial of this action to have given any thing in evidence, with a view to show that the mortgage was discharged before the judgment for execution was had upon the mortgage. Taking this view then of this part of the case, I can see no reasonable objection to the plaintiff’s recovering the 2095 dollars and 50 cents, the amount of the price which he paid for the land, with interest thereon from March 1831, when he was forced to give up the land and become the tenant of Mrs Pemberton. It can not be denied but.lbat he has lost at least that amount indirectly in money, through the default of the intestate of the defendaht to perform the condition of his bond. The land must be considered, as between the parties to this suit, worth what the plaintiff gave for it; so that, by the loss of the land, he has lost his money. The profits of the land as long as he was permitted to receive them for his own use, may fairly be considered as equivalent to the interest upon the price of the land down to the time of taking the lease, when he became accountable for the rents and profits of the land to another; but from that time it is nothing more than just and equitable that he should be allowed the interest upon the 2095 dollars and 95 cents.
Judgment reversed and a new trial granted.