The opinion of the court was delivered by
Horton, C. J.:
Upon the findings of fact, the judgment of the trial court must be. reversed. Todman acknowledged satisfaction of his mortgage, and released in writing the record in the presence of Levi Robbins, the agent of S. P. Robbins, and then handed his notes and mortgage to Cowdin. *495After Todman had executed his release on the record, the subsequent mortgage from Cowdin to S. P. Robbins was signed and acknowledged. Thereupon Levi Robbins, as agent of S. P. Robbins, gave Cowdin the money mentioned therein, and upon the delivery of the note and mortgage to him, he, as such agent, handed the mortgage to the register of deeds to be filed for.,"record, by whom it was duly recorded. It is true that Cowdin induced Todman to execute the release and hand him his notes and mortgage by false pretenses and without consideration; but as Todman confided in him and his promises and acted thereon, and as Robbins loaned his money and accepted the subsequent mortgage upon the faith of the release of the prior mortgage by Todman, the latter'is now estopped from asserting as against S. P. Robbins the priority of his mortgage. Todman released and satisfied his mortgage in accordance with the prior arrangement between him and Cowdin, with the expectation that. Cowdin would- turn over to him the money that he was loaning from Robbins; and Robbins did not part with his money or accept the note and mortgage of Cowdin until the release of Todman’s mortgage had been entered of record. He paid over his money to Cowdin with the full reliance on his part that Todman’s mortgage had been satisfied and released, and the conduct of Todman fully justified him in thus believing and acting. After Robbins had thus parted with his money, Todman cannot be heard as against him to say that'the release is void because obtained by false pretenses and without consideration. Todman by his release did not relinquish as against Cowdin the lien of his mortgage; but as Robbins loaned his money and accepted the subsequent mortgage upon the faith that the prior mortgage had been discharged, the lien of such mortgage cannot have priority to the mortgage from Cowdin to Robbins. The doctrine of equitable estoppel is applicable with great force against Todman, and although the conduct of Cowdin was criminal, for which he deserves to be severely punished, yet Todman rather than Robbins must be the sufferer thereby. The confidence of Todman was betrayed by Cowdin, and *496Todman, not Robbins, is entitled to -the recovery of tlie money which Cowdin held in his hands when he left so suddenly the room of the register's office and galloped away on his horse. As between Todman and Robbins, although each acted in good faith, there was not the like care and prudence. The former acknowledged satisfaction of his mortgage and delivered his notes and mortgage to the mortgagor before he had received any money or other payment, evidently trusting to the mortgagor to carry out his agreement and promise to him. The latter trusted no one. Before he loaned his money or accepted the note and mortgage from Cowdin, he saw that the release of the Todman mortgage was properly executed on the margin of the book of records. Had Tod-man been equally as careful, he would have required the payment of the agreed sum from Cowdin to him before the release of his mortgage was executed. Had he acted thus prudently, Cowdin could not possibly have succeeded in his scheme of fraud. Had Robbins parted with his money and accepted the note and mortgage of Cowdin in the office of the register of deeds prior to the release of the Todman mortgage, and then Cowdin had fled with the money, Robbins, not Todman, would have been the sufferer. Robbins was too vigilant and watchful to do this, and therefore the law protects him rather than Todman.
The judgment of the district court must be reversed, and the case will be remanded with direction to the court below to enter judgment upon the findings of fact that the mortgage of S. P. Robbins be decreed the first lien on the land therein described.
All the Justices concurring.