delivered the opinion of the Court.

The appellee claims that she is entitled to have credited upon her mortgage debt to the appellant, not only all sums in excess of legal interest that she herself has paid on account of her indebtedness, but also all similar amounts paid by Samuel B. Martin on his mortgage debt, prior to the execution of her mortgage.

We do not think there was such privity of interest or estate between her and the said Martin as to warrant this claim.

The contract between her and the appellant was a new and original one. The property covered by the mortgage of Samuel Martin was conveyed to her by him, and if she had taken the property subject to his mortgage, and without change of her relations to the mortgagor and mortgagee, except as mere purchaser of the equity of redemption, whatever rights to re-imbursement for usurious payments subsisted in Martin, would have enured to her. But, there was in fact, an extinction of the mortgage debt due by Samuel B. Martin. His note which expressed the indebtedness secured by his mortgage was surrendered to him, and the mortgage formally released. It is true, that instead of paying off this lien upon the property, she agreed to give a mortgage for a similar amount; but that was her own election; and the arrangement by which she assented to the validity of Reeder’s claim to the amount of $4000, was of her own proposing; and this very concession may be fairly considered as one of the considerations moving Reeder to abandon his old claim against Martin, and accept a newr obligation from her. Another element entering into the transaction between her and Reeder, and impressing it w'ith the character of a new one, was a demise made by her of part of the premises as leasehold property, subject to which her mortgage was executed. The security taken by Reeder was less under her mortgage than under the former one, or, at least, *220different in specific character. Having thus dealt with the mortgagee, she is precluded from asserting an3r rights which Martin may have had to recover hack from Reeder. They were not transferred to her, hut remain in him to he asserted or not at his own option.

It is further to he observed that Samuel Martin was not a party to the negotiations between Reeder and the appellee; the mortgage from her was not through his, procurement, simply as an extension of the old indebtedness with another debtor. It was an independent transaction between Eannie Martin and Reeder, based on inducements arising between them alone. In substance, Reeder claiming a lien upon the property for $4000, Eannie Martin acknowledges and treats it as one of that extent; but proposes its extinction in the shape it then was, offering to give a fresh security, different in a material respect, substituting herself as the debtor, if the holder of the mortgage against Samuel B* Martin, will accept the property as modified in character by her act. To this Reeder, assents. While in a certain sense it is true, that but for the indebtedness originally incurred by Samuel B. Martin, there would have been no incumbrance on the property to be provided for by the appellee, still we think that it was not merely a devolution of Samuel B. Martin’s liability as mortgagor upon her; but substantially a new and original undertaking on her part, limited in its relations and incidents to the period of its inception and the time since elapsed. She has no warrant in law Or conscience, now to go behind her bargain with Reeder, except to avail of the usury law to reclaim overpayments which she herself has made. In other words, she is restricted in such an effort to her own contract, which is the light in which we regard the giving of her own promissory note and the execution of her own mortgage, upon the release of the other.

It results from this view of the case, that we regard the auditor’s report and the order approving the same erroneous, and that the latter must he reversed, and the canse remanded, that an account may he taken limiting the credits of the appellee for usurious payments to the date of her mortgage.

Order reversed and cause remanded.