This is an appeal from the supreme court of the territory of Wyoming. The suit was brought by Edward Ivinson, the appellant, in the district court of the Second judicial district of that territory, to foreclose a mortgage on certain real estate, made to him by Charles H. Hutton. To the bill Joseph M. Carey and R. Davis Carey are made defendants, upon an allegation that they claim some interest in the property. The defendants made a joint answer, in which they all set up a full release of the mortgage and satisfaction of the debt by Ivinson before the defendants Carey obtained their interest in the property; and whether this be true or not is the only point in the case. It is not denied that when the defendants the Careys were about to let Hutton have $10,000 on this land, and take absolute deeds of conveyance for it, they required that the title to it should be made clear and relieved of Ivinson's mortgage. Thereupon Ivinson made an entry on the margin of the record of the mortgage, as follows:
'I hereby acknowledge satisfaction in full of the debt for which this mortgage was given to secure, and hereby discharge and cancel the same, this sixth day of October, 1877.
E. IVINSON.
'Attest: J. W. MELDRUM, Register of Deeds.'
The supreme court of the territory, from which this appeal is taken, made a finding of facts by which we are to be governed in the decision of this appeal. From this finding it appears that in April, 1873, Hutton made his promissory note to Edward Ivinson for $13,582.54, with interest, and that on the same day he executed the mortgage which is the foundation of this foreclosure suit to secure the payment of the note. Subsequent to this, Ivinson asserted that a mistake had been made in computing the balance due him in the settlement on which the note and mortgage were given, and that they should have been for $17,618.66, instead of the sum actually put in the mortgage and note, making a difference of $4,036.12. Ivinson brought a suit to correct this mistake, which finally came to the supreme court of the United States, where he prevailed, obtaining a decree for the correction of the mistake in the note and mortgage. These proceedings lasted from August 1873, to March, 1879.
Pending this controversy, however, Ivinson and Hutton made a written agreement to adjust their differences, other than this controversy, but it was expressly agreed that the controversy, then pending in this court, was left out of the settlement, by the following language: 'Provided always, that nothing herein contained shall be construed in anywise to affect the rights of the parties hereto in said suit between them now depending in the supreme court of the United States.'
This agreement was made on the thirty-first of May, 1877, and is marked 'Exhibit D' in the record before us. On the sixth day of October, 1877, Ivinson, Hutton, and Joseph M. Carey were at the court-house in Laramie City, for the purpose of concluding a loan of $10,000, which Carey was about to make on behalf of himself and brother to Hutton, to enable him to pay his debts, including a judgment in favor of Creighton against Ivinson and Hutton, amounting to nearly $6,000. This loan was to be secured by real estate, part of which was covered by Ivinson's mortgage. Before paying over the money to Hutton, Carey required of Ivinson and Hutton that Hutton's property should be released from all incumbrances, and Ivinson entered on the margin of the record of his mortgage the discharge which we have already transcribed. The court then further finds as follows:
'That said discharge was not made in accordance or in pursuance of the agreement of the thirty-first of May, A. D. 1877, above recited, marked 'Exhibit D,' but was an absolute, unqualified release and cancellation of the mortgage. The court further finds that the value of the property mortgaged was not less than twenty thousand dollars.
'(4) On the trial of the case in the district court the testimony of eight witnesses, to-wit, Edward Ivinson, M. C. Brown, J. M. Carey, Charles H. Hutton, Stephen W. Downey, Walter Sinclair, H. B. Rumsey, and J. W. Blake, which had been taken before J. W. Meldrum, master in chancery, was read in evidence. To so much of said evidence as was intended to vary, explain, or contradict or qualify the entry of the discharge on the margin of the record of the mortgage by Ivinson the defendant excepted as incompetent. This court holds that said exception was well taken, and that parol evidence was not competent for that purpose, or to prove that the discharge was made in accordance with Exhibit D.