majority">Waite, J.

From the report of the committee in this case, it appears, that George Olmsted, on the 13th of May, 1840, assigned to the parties in this suit, two certain contracts, and a certain note, “with full power to collect said claims, and apply the avails, after deducting the incidental expenses of collection, in payment of the respective claims by them severally held against him, whether by assignment or otherwise, in proportion to their respective amounts.”

The claims thus assigned were placed in the hands of the defendant for collection ; and he has received upon one of them the sum of 1195 dollars, 88 cents, over and above the incidental expenses, and nothing upon the others.

The object of the plaintiffs’ bill, is, to determine in what manner this sum shall be divided among the parties. The assignment has prescribed the rule. It is to be divided among them, in proportion to their respective claims against the assignor, at the time of the assignment.

The committee has found, that Olmsted was indebted to the parties in their own right, in certain specified sums. The division is, therefore, to be made according to the debts thus found, unless it appears from further facts specifically detailed in the report, that the defendant is entitled to a greater share. This he claims. And he contends, that at the time of the assignment, he was the owner of two notes against Olmsted, which had been assigned to him, one for 2632 dollars, 99 cents, payable to Elisha Sage, and the other for 218 dollars, 50 cents, payable to Evelyn Pitkin.

The committee, instead of finding directly, whether Olmsted was indebted to the defendant on account of those notes, as he had a right to do, has thought proper to report the facts upon which the defendant founded his claim, that the court might draw the inference as to such indebtedness.

From these facts, it appears, that those notes were secured, by mortgages upon certain lands of Olmsted’s ; and that the defendant afterwards procured a mortgage covering the same lands, to secure his own debt. Olmsted had also made an assignment to a trustee of certain other real estate and his personal property, for the benefit of all his creditors. Those two notes were presented to the commissioners under that assignment, and the claims were allowed. The defendant, then, purchased of Olmsted his equity of redemption in the *125lands mortgaged for the security of those notes, and thereby became the owner of those lands.

He subsequently sold them, and from the avails realized enough, with the dividends received from the trustee, to pay those two notes, the amount paid Olmsted for the equity of redemption, and all expenses attending the transaction of the business. All this was done before the assignment to the parties in this suit, with the exception of the receipt of the dividends under the general assignment. At what time they were received, does not appear from the report.

The question then arises, whether after the defendant had obtained from Olmsted a release of the equity of redemption, had sold the lands mortgaged, and realized enough from such sale, to pay the Sage and Evelyn Pitkin notes, he continued to have any valid claim against Olmsted on account of those notes. So long as he continued to hold those notes, secured only by a mortgage upon the debtor’s real estate, he was a creditor of the mortgagor. But after he had taken the pledge, sold it, and received the avails, were not the notes satisfied ? Had he any debt against Olmsted, which he could enforce, either in law or equity ? We think not. He might perhaps have applied the moneys received from the sale of the lands in payment of his own debt, leaving a balance due on account of those two notes. But the result would be precisely the same. He had undoubtedly a right to charge against Olmsted the three notes, his own, and the two assigned to him ; but we think he is bound also to credit the avails received from the sale of the lands, especially as they were received before the assignment to the plaintiffs and defendant.

But further, if we look at the assignment of those two notes, we shall find, that the object of the parties was, to enable the defendant to collect the dividends upon them from the trustee under the general assignment. But if it were otherwise, we do not see upon what principle a debt secured by a pledge, can be subsisting, when the creditor has obtained full satisfaction from the pledge.

It has been said, that equity will sometimes recognize a debt, that has been satisfied at law. This is true, where justice requires that it should be done. Thus, where the first mortgagee took a release of the equity of redemption from the mortgagor, and gave up to him his note ; it was held, that *126a second mortgagee should not take the land, without paying to the first mortgagee the amount of the note. For although at law the debt was satisfied, yet a court of equity would look at the substance rather than the form of the transaction, and see that justice was done to the parties. Baldwin v. Norton, 2 Conn. R. 161.

But where is the defendant’s equity in the present case ? Upon what principle of justice can he claim to receive a share of the fund in question, on account of the Sage and Evelyn Pitkin notes, when the report clearly shows, that those notes have been paid and satisfied out of the property mortgaged for their security ?

It is true, Olmsted, when he made the assignment to these parties, had a right to prescribe in what manner the proceeds should be divided. He might have said, that the defendant’s share should be in proportion to the amount of those two notes and his own, whether any portion of that amount had been paid or not. And the parties, by accepting the assignment upon those terms, would be bound to make the division accordingly.

But, in our opinion, he has not said that. He has directed the division to be made according to the respective claims of these parties, as then existing. The committee has found, that the defendant had a claim on account of his own note, about which there is no controversy, and in our opinion has not found such facts as will justify us in holding that he had any just or equitable claim on account of the notes assigned to him.

Such was the conclusion drawn by the court below ; and a majority of this court think the inference correct ; and consequently, that there is no error in the decree of the superior court.

In this opinion Storrs and Hinman, Js. concurred.Williams, Ch. J. and Church, J. dissented ; but the reasons of their opinion have not been reduced to writing.

Judgment affirmed.

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