Hines

Plaintiff held a mortgage, given and recorded in June, 1890, on land of defendant Tunison to secure the latter’s note, on which there was due in May, 1894, the sum of fifteen hundred dollars. Being insolvent and unable to pay the note, and desiring to avoid the expense of foreclosure and sale, Tunison requested plaintiff to take a deed, of the mortgaged premises in satisfaction of the debt, representing to plaintiff and assuring him that there was no other encumbrance or lien upon the land. Plaintiff, believing and relying upon Tunison’s representations, consented, without an examination of the record, to accept such deed, and thereupon on May 19, 1894, Tunison and wife made and executed to plaintiff a deed of the premises, which the latter took, and in consideration thereof surrendered and canceled the note and satisfied the mortgage and placed his deed of record.

In fact, the defendant Bichter had in March, 1894, without plaintiff’s knowledge, hut with the knowledge of Tunison, re* *117 •covered a judgment against the latter in the superior court of the county, which judgment appeared of record as having been entered and docketed on the 27th of that month; and in August, .1894,…