The mortgage was given by the defendant Hodgdon to the defendant Benton in 1876, to secure six notes. In April, 1884, Brown and the plaintiff's testate, Hopkinson, recovered *Page 624 judgments against Benton, and Hodgdon was charged as trustee for the amount of the judgments. In payment of the judgments four of the notes (reduced to the amount of the judgments by an endorsement of a partial payment, which was adjusted by Benton and Hodgdon) were transferred and delivered with the mortgage by Benton to Brown and Hopkinson. Hopkinson afterwards bought Brown's interest in the four notes and the mortgage. Benton still holds the other two notes. Hopkinson, Brown, and Benton understood that if a foreclosure of the mortgage should be necessary to obtain payment of the four transferred notes, those notes should be fully paid before any proceeds of the foreclosure should be applied to the payment of the other two notes. The competent proof that this understanding was a part of the transaction is conclusive. A finding against Hopkinson's prior right would be set aside as against the evidence.
Decree for the plaintiff.
CARPENTER, J., did not sit: the others concurred.