and surrenders the latter, it will, primâ facie, be regarded as payment. And where the securities described in the condition of a mortgage are exchanged, without the consent of others jointly interested in the security, it has been held payment, as to them. Van Rensselaer vs. Akin, 22 Wendell 549.

17. But as we have before said, this whole class of cases turns upon the intention of the parties as evidenced by the attending circumstances, to be determined as matter of fact, and the attending equities of others incidentally interested in having the incumbrance paid off or kept on foot, as the case may be, and will scarcely justify a more extended citation of cases or discussion here. It must be obvious to all, from what we have already shown, that the registry of the mortgage can only be relied upon to the extent of furnishing facts, sufficient to put the parties interested in learning the state of the title, upon inquiry in the proper direction, and giving such a clue to the ultimate facts desired, as will enable them. by proper diligence to ascertain them. And some of the states have gone so far as to hold an absolute deed in fee simple given to secure a debt, as a valid security, as to third parties, even, as it unquestionably is in regard to the parties. Marks vs. Pell, 1 Johns. Ch. R. 594; 2 Greenleaf's Cruise 67 and note. In this note the subject of parol defeasances is considerably discussed and many of the cases referred to. Most of the cases hold such deeds fraudulent as against existing creditors, upon the ground that the transaction, as defined in the deed, is not the same which actually occurred, and that the deed is therefore colorable, and calculated to mislead. But in some of the states such a conveyance is held valid even as to creditors. Wright vs. Bates, 13 Vt. R. 341; Gibson vs. Seymour, 4 Vt. R. 518. And since it is now firmly established, in most of the American states, where the practice of registration generally exists, that there is no necessity of having the registry present the true state of the indebtedness, as it existed at the date of the mortgage, and subsequently, there seems no valid reason why a security for debt, created by way of an absolute conveyance, may not be held equally valid, as to creditors, that it is between the parties.

II. The far more important question is now to be considered, as to the nature and validity of mortgages to secure future ad

vances.

1. The idea of giving security in advance for future credits, is one of very early origin in the commercial transactions of men. The principle of retaining the thing pledged or mortgaged, not only until the payment of the specific debt created at the time of the transaction, but until all subsequent indebtedness was cancelled, is distinctly recognised in the Roman Civil Law. JACKSON, J., in Jarvis vs. Rogers, 15 Mass. R. 406, 407, and cases cited. Chancellor KENT, 4 Comm. 136, n. (a.) thus defines the Roman Civil Law in regard to this point: "The mortgage could be held as security for further advances. (Code 8, 27, 1.)" «The mortgagee was allowed to tack subsequent debts, in case of redemption, though this was not permitted to the extent of impairing the rights of intermediate incumbrances. Dig. 20, 4, 3, 20, 4, 20; Code 8, 27, 1." Hence, it may fairly be presumed, originated the English law of tacking subsequent indebtedness to an existing mortgage, notwithstanding any intervening lien. Mr. Justice STORY denies that being the origin of the English law upon that subject. 1 Eq. J. § 415, and note and cases, and authorities cited. But see Powell on Mort. (by Coventry) vol. 2, p. 454.

2. It must be confessed that an inspection of the authorities referred to, which have fallen in our way without much effort, rather tend to raise the doubt insisted upon by Mr. Justice STORY, in regard to the English law of tacking existing in the civil law, notwithstanding the preponderance of modern opinion, that by the civil law the creditor was allowed to retain both the pignus and the hypotheca until paid all the debtor owed him, even after other liens had expired, without notice to the first mortgagee, until he had given further credit. And Domat, B. III. Part I. Tit. I. Sect. I. Art. IV., lays down the rule in distinct terms: "If a person, foreseeing that in a short time he may have occasion to borrow money, obliges himself, beforehand, for the sum which he shall afterwards borrow, and mortgages his estate for this loan that is to be contracted, the mortgage stipulated on such account will be without effect." This would seem to

favor the view, that by the civil law all securities expressed to be for future advances were held invalid. But a careful examination of the authorities quoted by Domat, upon this point, renders it quite evident that this declaration had reference only to the time intervening between the execution of the mortgage and the making of the advances, and that the rule will not probably apply to that period even, where the creditor obliges himself, at the date of the mortgage, to make the advance at some future time named; and this does not vary essentially from the present rule of equity jurisprudence upon the subject to which we shall have occasion to

refer hereafter.

3. But, waiving all inquiry further into the origin of the rule, there can be no question the right does exist, in the English law, for a third mortgagee, whose debt was contracted in ignorance of the second mortgage, by purchasing in the first mortgage, to insist upon the payment of the whole sum then due him, before the second mortgagee can derive any benefit from the mortgaged estate. 1 Story's Eq. J. § 412; Spencer vs. Pearson, 24 Beavan 266. This is allowed upon the familiar rule of equity jurisprudence, that one whose equity is equal may stand upon his superior legal right, without any interference on the part of the courts of equity, under which maxim bona fide purchasers of an estate, without notice of any defect in the title, may defend themselves against any such defect, when discovered, by purchasing in any statute, mortgage, or other outstanding incumbrance upon the estate; and equity, it is said, will act upon the wise policy of the common law of protecting and guarding lawful possessions, and strengthening such titles.

4. But it has been seriously questioned, and, as it seems to us, not without reason, whether the equities are entirely equal between a second and third mortgagee, both of whom have contracted their debt and taken their security, supposing there was no incumbrance on the estate beyond the first mortgage. After the fact of the second mortgage is made known to the third mortgagee, it seems scarcely fair and just to say they are in equal position, in an equitable point of light. It may be true that they gave

credit equally to the same property; but one gave such credit rightfully, and the other not. It would be deemed a very unjust statement of the equities of two persons, one of whom had purchased goods of one who took them feloniously, and the other of the true owner, to say they stood precisely equal in an equitable point of view. The most which can fairly be said in favor of tacking is, that any party having given credit in good faith to one professing to have title to property, and upon the faith of such property, must be said to stand in so much more favorable light than if he had known of the defect of title, that he may be allowed to protect himself by purchasing in the legal title. This shows that Lord HALE's term of tabula in naufragio, a plank in a shipwreck, which he applied to the fight of the third mortgagee to protect himself by purchasing in the first mortgage, Marsh vs. Lee, 2 Ventris 337, was not without some significance. The rule must have originated more in the disproportionate deference paid to legal estates above mere equitable ones, than in any belief of the equities being equal.

5. It seems to be well settled that if the third mortgagee knew of the second mortgage, at the time he gave credit, he cannot be allowed to tack his mortgage to the first; for in such case there is no pretence for saying that the equities are equal. Toulmin vs. Steere, 3 Mer. R. 211; Lacey vs. Ingle, 2 Phillips' Ch. R. 413. Nor can a judgment-creditor, or any other not having given. credit expressly to the land, at the time of contracting his debt, be allowed to tack his lien to a prior legal estate, so as to exclude an intervening incumbrance. Brace vs. The Duchess of Marllorough, 2 P. Wms. 491, 495; Lord ELDON, Chancellor, in Ex parte Knott, 11 Vesey 617. The cases are numerous, and the discussions almost endless, in the English Equity Reports, in regard to the different circumstances under which a creditor may be said to have such degree of equity as to be permitted to tack his debt to an outstanding legal estate. But as the law has never prevailed in the United States, and is in no just sense allowable where a law for the registration of land titles exists, it will not be important to consider the subject further, it having been examined

thus far chiefly on account of its analogy to, and its bearing upon mortgages for securing future advances. Grant vs. U. S. Bank, 1 Caine's Cas. in Error 112; Parkist vs. Alexander, 1 Johns. Ch. R. 399; Story's Eq. Jur. § 419, and note and cases cited.

6. Contracts for future advances are sometimes made part of the security given for their payment; and in such cases the mortgages are the same, to all intents, as if the consideration of the indebtedness had been paid at the time the contract for their payment was given. No future incumbrance upon the same estate can interpose, so as to postpone the security of the first mortgage, and the mortgagee may make the advances stipulated even after notice of a later mortgage. Crane vs. Deming, 7 Conn. R. 387; Moroney's Appeal, 3 Am. Law Reg. 169; Ter Hoven vs. Kerns, 2 Barr 86; Parmentier vs. Gillespie, 9 Barr R. 86. It seems to be requisite that such contract to make future advances to enable the mortgagee to persist in making them, after an intervening incumbrance, should form a 'constituent part of the original contract, and bind both parties, the one to make and the other to accept such advances. But it is not requisite that it should all be expressed in one instrument. It will have the same force if the covenant to make such future advances be contained in a separate instrument. Brightly Eq. Jur. 289; Moroney's Appeal, 3 Am. Law Reg. 169.

7. The most important class of mortgages to secure future advances, is where the future advances contemplated, at the time of giving the security, and expected by both parties to be made, provided there is no change of circumstances or of credit; but, where nevertheless it is optional with both parties, to put an end to the dealings at any moment, sometimes by definite notice to that effect, and sometimes by simple refusal to continue the dealings. This class embraces by far the greater number of cases coming under this general denomination of mortgages to secure future advances, and partially covers the entire ground which is practically important, in a commercial point of view. For contracts, where the mortgagee binds himself absolutely to make future advances, are not common in practice, and not different in principle,