¶1None of the property included in the mortgage, except the horse, belonged to Patrick Tracy; and Johanna Tracy brought an action and recovered judgment against Lincoln for taking the same upon the mortgage. Lincoln acted for himself and his co-plaintiff in so doing. The record of this judgment was put in evidence without objection. The apparent payment of the plaintiffs’ claim by the foreclosure was to this extent no real payment, because the property taken (except the horse) did not belong to the mortgagor, and because the partner who took it was responsible to the true owner. This apparent payment therefore goes for nothing, and the rights of the parties are the same as if this property had not been taken, and the interest at the exorbitant rates promised is not cut off. Lamprey v. Mason, 148 Mass. 231. The fact that Johanna Tracy had not actually recovered her judgment at the time this action was brought is immaterial. The important facts are, that Patrick Tracy was not the owner of the property, and that she was, and that she was asserting her paramount claim to the same, and was entitled to do so ; and these facts were conceded at the trial. Whitney v. Willard, 13 Gray, 203. Her right being conceded, it is not material that she had not actually recovered judgment. Lincoln might well have yielded without litigation to a claim which he could not resist. Whitney v. Dinsmore, 6 Cush. 124, 128. King v. Bird, 148 Mass. 572.
¶2Kxeeptions overruled.