#### George A. Roberts and L. H. Parker, Appellants, v. George M. Barbee et al., Appellees.

(Not to be reported in full.)

Abstract of the Decision.

Mortgages, § 208 * —when evidence sufficient to show that subsequent purchaser had no knowledge of existence of unrecorded mortgage. Where in a proceeding to foreclose a mortgage it was shown that the mortgage, although executed and recorded, in favor of a third person, was in fact the property of the complainant and known by the parties as such, no assignment being recorded, however, and *103subsequently another mortgage was executed in favor of the complainant, covering the same property, but not recorded, the evidence was held sufficient to show that a subsequent purchaser under a deed, expressly reciting that the purchaser assumed a mortgage in favor of complainant, had no knowledge of the existence of the unrecorded mortgage, and where he paid an amount in excess of that due on the recorded mortgage in the mistaken belief that he was in fact paying such mortgage, which payment the mortgagee applied to the payment of the unrecorded mortgage, he was entitled to be reimbursed pro tanto.

*102Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.

Affirmed.

Opinion filed October 13, 1915.

Statement of the Case.

Bill by George A. Roberts and L. H. Parker, complainants, against George M. Barbee, Mattie A. Widick, William Baum, T. C. Dove and others, ‘defendants, to foreclose a mortgage executed by defendants George M. Barbee and Sarah J. Barbee, and cross-bill praying that such mortgage be released of record and that complainant Roberts pay to the defendant Baum and the defendants Dove the amount paid by Baum in excess of the amount due on the mortgage, together with legal interest. From a judgment for defendants, complainants appeal.

Whitaker, Ward & Pugh, for appellants.

W. C. & T. M. Headen, for appellees.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Thompson

delivered the opinion of the-court.