after stating the case: The validity of the mortgage from E. PI. Hinson to J. C. Barnhardt of Jan*649uary 1st, 1884, is not questioned, and it embraced the land in controversy.
The alleged liens upon it of the docketed judgments underlying the plaintiff’s title were created long after that mortgage was executed, and the plaintiff got no title by virtue of the Sheriff’s deed under which he claims, unless the mortgagee effectually discharged it as to this land and revested the title in the mortgagor. In that case the liens of the judgments attached and the title passed to the plaintiff.
We think the defendant was entitled to have the Court instruct the jury that, if they believed the evidence, they should render a verdict upon the issues submitted to them in favor of the defendant, because the land was not discharged of the mortgage in favor of the mortgagor, nor did the title revest in the latter. The title was in the mortgagee, coupled with a power of sale that authorized him to sell the land. An arrangement was made satisfactory to the mortgagor and to the mortgagee, whereby the latter in substance and effect, sold this particular tract to J. M. Hinson for $550. The land was not to be reconveyed to the mortgagor. The evidence tended to show that the transaction was in good faith, as did also the acts done to effectuate it. The. mortgagee made this informal entry on the mortgage deed:
“I hereby release from the within mortgage seventy and one-half acres adjoining the lands of J. W. Swaringer and others, and described within as the land on which B. S. Gray lived, and sold to J. H. Hinson.
(Signed) J. C. Barnhardt.”
September 12, 1887.
At the same time, and as part of the same transaction, he made this entry on one of the mortgage notes:
*650“ $470. Received on the within notefour hundred and seventy dollars, being the amount derived from the sale of seventy and one-half acres of land to John M. Plinson, being the place'where B. S. Gray formerly lived.
(Signed) J. C. Barnhaedt.”
September 12th, 1887.
These entries were evidence, along with other evidence, to show the nature and purpose of the transaction, and such evidence tended to prove a sale of the land as just indicated. So far as appears, there was no purpose to revest the title in the mortgagor at all. There was no reconveyance or release to him, nor was there necessity that there should be. He did not pay the purchase-money — it was not paid for him, nor were there any words of reconveyance to him. The fact that he executed a deed for the same land to J. M. Hinson did not, in view of it, prove that he had the title — it only had the effect to conclude him as to all claim, equitable or otherwise, as mortgagor, and was not unreasonable or improper as a cautionary measure. The mortgagee failed to convey the legal title to J. M. Hinson The entry on the mortgage deed made by him was no more than a pertinent memorandum in writing — it was not sufficient as a conveyance. Nor did the fact that the mortgagee took the note of J. M. Hinson for the purchase-money and a mortgage from him of the same land to secure the same, at all affect the transaction adversely. The mortgage debt was due to him, and it was competent for him to receive payment as he did in pursuance of an honest arrangement. It does not appear that the mortgagor derived any benefit from it, except the discharge of. a part of the mortgage debt. If it be granted, that the parties did not really fully understand the legal effect of what they did, the evidence all goes to show that the title to the land did not revest in the mortgagor, nor was *651it intended that he should in any sense become the complete owner of it. If they believed that the title ought to pass to J. M. Hinson through him, that was no more than a mistake that was not consummated, as it turned out. It is true that John M. Hinson said he repurchased from the mortgagor, but that plainly implies that the latter and he agreed that he should buy it from the mortgagee. He did not, and could not under the circumstances, buy it from the mortgagor — he could only buy it effectually from the mortgagee, and that he did, because the latter gave his assent and his consent to the arrangement- as effectually as if he had originated it. If the title had revested in the mortgagor under misapprehension, it might be that the lien of the docketed judgment, would have attached, as contended by the plaintiff. But there was no evidence to prove that it did revest for an instant, or at all.
It is unnecessary to advert further to several views of the case presented and elaborately argued by the counsel of the parties.
Error.