¶1Whether we regard the assignment of the moifcgage to these plaintiffs as a mortgage of the mortgage, or as. an absolute assignment, extinguishing all the security as to the notes not transfered; whether there can be a mortgage of a mortgage of chattels, or whatever may be the effect of the assignment of the five notes and the chattel mortgage to secure the payment of the debt due these plaintiffs, upon the residue of the notes secured but not assigned,, still, as between these parties, whether the debt to secure which the assignment was made had or had not been paid, and if paid, when paid, were material questions. If paid without foreclosure, the plaintiffs’ title to the goods was extinguished; for by the most liberal construction of the mortgage in their behalf, they could only act as trustees of Beach, the assignor, upon foreclosure and sale; while, if them debt was satisfied without resort to foreclosure, the residuum of the mortgage interest, if any there were, reverted to Beach. In either view, they would have, no title upon which to t maintain this action.
¶2The ruling of the court excluding testimony offered to show such payment, either in cash or by appropriation of sufficient of the mortgaged property before forfeiture, was therefore erroneous, within the rule of Parish v. Fuller and Jewett v. Thurber. See also Rose v. Story, 1 Barr, 190. With these errors, we can not consider the facts submitted, but the judgment must be reversed and a new trial ordered.