¶1(dissenting):
¶2I do not agree with my brethren in reversing this case. It is admitted, and shown by the record, that the plaintiff purchased the lots in question, in good faith, for a valuable .consideration, believing them to be free from all incumbrances. Some time afterwards, desiring to mortgage the lots, it became necessary to ascertain the state of the title; and therefore she procured the services of an attorney, who, within a few days, informed her that the lots were covered by a “blanket mortgage.” Thereupon she represented the matter to Clark, the appellant herein, who was the owner of the mortgage which was supposed to include the lots. There is some conflict in the evidence as to what representations Clark then made to the plaintiff, but it is clear that he claimed his mortgage covered the lots in question. The plaintiff becoming satisfied that .such was the case, it was agreed between her and Clark that she should pay him the sum of $400 to release them, which sum having been paid, they were released on De■cember 24, 1890. Up to this time it is conceded that both parties were mutually mistaken, and were acting in .good faith.
¶3On March 13, 1891, Clark began foreclosure proceedings upon the mortgage, and then learned that the lots were not covered by the mortgage; but although he knew that *479■the plaintiff was in ignorance of that fact, and that she had paid $400 as a result of such ignorance, which he was not entitled to, under the facts as they then actually ■existed, he made no attempt whatever to inform her that the lots' were not included in the mortgage. Nor did he make her a party to the foreclosure suit, and the only neason which he assigns, according to the admissions of his counsel, for not making her a party to that suit, and ■consequently for withholding from her his subsequently Required knowledge, is that the plaintiff had received the release from him. He made an effort, however, in court, at the time of the foreclosure proceedings, as is admitted by his counsel, to have the mortgage reformed so as to include the property in question, but failed in such effort. Some time after the foreclosure of the mortgage the plaintiff ascertained the facts so withheld from' her by Clark, and thereupon demanded a return of the money which ¡she had paid him for the release, which demand was refused; and she was then, for the first time, informed that he had placed that money to the credit of the mortgagor. It will be noticed that Clark discovered the mutual mistake between the parties before the mortgage was foreclosed, at a time when he was yet in a position to return the money paid by mistake for the release, and recover it from the mortgagor, and thus, without loss to himself, ■save the plaintiff from loss, it not appearing from the record that the mortgagor was unable to pay his debts. .Failing to inform the plaintiff of the discovery of their mutual mistake, he rendered himself more negligent and ■more at fault than the plaintiff was, and should, therefore, not be heard to complain when he is asked to refund the money.- From the facts and circumstances as -they appear from the- record in this case, I am unable to aee upon what principle of justice and fair dealing the .appellant can be permitted to prevail. I therefore dissent.