unless it is apparent this was the intention of the parties. As where one promissory note is given for another. Watkins vs. Hill, 8 Pick. 522; Bank vs. Rose, 1 Strob. Eq. 257; Demshee vs. Parmlee, 19 Vt. R. 172; McDonald vs. McDonald, 16 Vt. R. 630; Bolles vs. Chauncey, 8 Conn. R. 389; Pomroy vs. Rice, 16 Pick. R. 22. 12. The same rule has been repeatedly applied to banking paper, where it is the custom to renew from time to time. Enston vs. Friday, 2 Rich. R. 427; Handy vs. Commercial Bank, 10 B. Mon. 98; Smith vs. Prince, 14 Conn. R. 472. The change and substitution of the parties by others will not affect the mortgage security. N. H. Bank vs. Willard, 10 N. H. R. 210; Pond vs. Clark, 14 Conn. R. 334. And the last case overruled the case of Peters vs. Goodrich, 3 Conn. R. 146, which held, in accordance with the principle of Griswold vs. Pettibone, supra, and the earlier cases, that as the registry must show the true state of the debt secured by the mortgage, it could not be changed by renewal or otherwise, without releasing the mortgage security. 13. And where a general security of $1500 was given to secure the mortgagee for indorsing the note of the mortgagor for that sum at the bank, and the note was renewed at the bank from time to time, being one time reduced as low as $600, and was finally protested for $720, upon the mortgagor becoming insolvent, it was held to be a portion of the original debt secured by the mortgage. And where the mortgagee gave the mortgagor his check to take up the note secured by the mortgage to save it being protested, it was held no extinguishment of the security. Rogers vs. The Traders' Insurance Company, 6 Paige R. 583. 14. In some late cases this allowance of substituted securities has been carried so far as seemingly to disregard the proper distinction between the creation of a new debt and the renewal of an existing one. In the case of Hubbard vs. Converse, 34 Vt. R., it was held that where the mortgagor gave security by way of mortgage to the amount of $25,000, expressed in a bill of exchange or draft for that sum, whereupon he was allowed to draw from time to time upon the bank for sums not exceeding $25,000 in the aggregate; and in taking up that draft was in every instance required to pay money before any subsequent draft would be honored; it was held that the mortgage security continued to maintain its priority notwithstanding a subsequent mortgage, of which the mortgagees had due notice long before the date of the drafts in existence at the time of the failure of the mortgagor. And in Rowan vs. Sharp's Rifle Company, 29 Conn. R. 282, it is decided that where the legal title of land was conveyed to the plaintiffs as security for the performance of a certain contract undertaken by the mortgagor to the mortgagee, viz. the manufacturing of twenty thousand rifles, on condition of having an advance of $10,000; and the possession being in the mortgagor and he having made erections and put machinery upon it to the value of more than $100,000 and given a subsequent mortgage for the security of the debts incurred by the purchase of some of this machinery, which had been duly registered; and the mortgagee having advanced $75,000 beyond the $40,000 stipulated to be advanced, and the mortgagee having received actual notice of the junior mortgage at some period after the date of the registry, it was held the first mortgagee was not affected by the registry of the subsequent mortgage, but that after actual notice of such subsequent mortgage, he was not justified in making further advances upon the faith of his security, except so far as was requisite to complete, or to enable the mortgagor to complete the contract. These illustrations might be carried much further, but enough has been shown to exhibit the extreme limit to which it has been carried. 15. We feel justified in saying that the fair result of the American cases upon this subject, which are quite numerous, many of which will be found digested 1 Hilliard on Mort. 449 et seq., is, that where no actual release of the mortgage securities was intended, as between the parties, and no actual payment of the same has been made by the money of the debtor, although there may have been an actual payment by the money of some other party, without any express agreement to subrogate such party to the rights of the mortgagee, the mortgage will still be held as a valid security. Kinley vs. Hill, 4 Watts & Serg. 426. This last case is where the mortgage debt had been paid with funds of which the debtor was the cestui que trust, and it was held to have satisfied the security. 1 Hilliard on Mort. 460, and cases cited. 16. There is no doubt some difficulty in reducing all the facts in the different cases reported upon this point to the same principle. In some cases the same fact has been regarded as evidence of an intention to release the mortgage security, and in others not. In Fowler vs. Bush, 21 Pick. R. 230, where the mortgagee demanded payment of the first instalment upon the mortgage to enable him to sell the mortgage, and the mortgagor gave a negotiable promissory note for the amount payable in four months to enable the creditor to raise the money by having the note discounted at the bank, and the first instalment was accordingly indorsed as satisfied, it was held that this clearly evidenced an intention to treat the substituted note as payment of the mortgage note, the mortgage having been assigned, and the suit brought by the assignee, the debtor having in the mean time become insolvent, and the note for the first instalment having been paid by the indorsee, who now claimed the right to a lien upon the mortgage security for his indemnity. The case is put by SHAW, Ch. J., expressly upon the ground of the intention of the parties at the time the note was given; distinguishing it from other cases, of a similar character, where no such intention was manifested, viz. Davis vs. Maynard, 9 Mass. R. 242; Crane vs. March, 4 Pick. R. 131; Watkins vs. Hill, 8 Pick. R. 522; Pomroy vs. Rice, 16 Pick. R. 22. And in Bonham vs. Galloway, 13 Illinois R. 68, it seems to have been considered that a mortgage to secure one for indorsing the note of the mortgagee, conditioned to be void if the mortgagor should satisfy his note, by renewal or otherwise, which he did by renewing his note with other indorsers, to whom the mortgagee assigned the mortgage, could not be held as a subsisting security for such purpose. This case seems to have turned upon the import of the condition. And where the mortgagee takes the note of the assignee of the mortgage for the amount due upon the note of the mortgagor 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 |