Cole, J.
i. mortestoppel, I. The appellee’s counsel do not insist upon .the first ground of demurrer, but the same is waived m this court.
The second ground of demurrer is, that “the plaintiff is estopped by the execution of the mortgage set out in his petition, from denying that such mortgage was. given to *392secure the note therein described.” Even if it should be conceded that a mortgagor is estopped by the mortgage from denying that it was given to secure the note described in it, such conceded estoppel could not operate to defeat the right of the maker, as between him and the payee, to show that the consideration had failed, or never had any existence, or the like. This is exactly the claim of the plaintiff in this petition.
He admits the giving of the note, and the mortgage to secure it, but he says the consideration of the note was not six hundred dollars, and that it was only for the indebtedness evidenced by the two other notes named. The giving of the mortgage did not, in any manner, affect the right of the defendant to contest the amount due upon the note. To construe it as an estoppel is as clearly against law, as it is against reason and justice.
2. cjtousd- , mmt.pay" II. Whether the defendant, Julia A. Jones, had authority to' accept the notes of third persons, or anything but money in payment or satisfaction of a money indebtedness due to her as guardian, we need not decide in this case. It is averred in the petition that she not only received the notes of such third persons in payment and satisfaction of the indebtedness of plaintiff, but also that she had received the money upon such notes, and had applied and appropriated the same as guardian. Surely, if she had thus received and appropriated the money, there can be no question'in a court of chancery as to the justice and equity of holding such payment good and sufficient. Nor does the fact that such payment was by the husband to the wife as guardian, or their inability to contract with each other, affect the question made in this case, which is an equitable proceeding. It was error, therefore,’ to sustain the demurrer, and the ruling of the District Court thereon is reversed.
*3933. eviRearsay. III. After the demurrer was sustained the plaintiff elected to stand upon his petition. The counsel for defendant then moved for a judgment of foreclosure of the mortgage. The court entertained the motion, and on the trial received, for the purpose of proving the loss of the note described in the mortgage, the affidavit of one of the defendant’s attorneys, as to what the defendant, Julia A. Jones, stated to him as to its loss at the time she left the mortgage with him for collection.' This too was error. Tide Greenl. on Ev., § 558; Ralph v. Brown, 3 Watts & Serg., 395.
As the judgment must be reversed and cause remanded when there will be a trial upon its merits, it becomes unnecessary to determine whether there was error in proceeding to a trial of the cause upon the motion as set forth in the record.
Reversed.