thousand dollars, and only during the pleasure of said Boswell; now if said Goodwin & Co. pay or cause to be paid all such notes so indorsed or to be indorsed by said Boswell, and save him harmless therefrom, then this bond to be void, otherwise to continue in fall force. In witness whereof, &c." The mortgage was recorded the same day. In pursuance of the agreement mentioned in the bond, the petitioner from time to time indorsed notes at the request and for the accommodation of Goodwin & Co., not exceeding the amount provided for in the bond, two of which he was afterwards compelled to pay, viz:-one note for $2700 at three months, dated and indorsed on the 6th of March, 1861, and one for $3000 at two months, dated and indorsed on the 20th of March, 1861. The note for $2700 was the last of a series of renewals of a note indorsed by the petitioner for Goodwin & Co. on the 8th day of January, 1858. On the 23d of January, 1858, Goodwin & Co. executed and delivered a mortgage of the same property to the respondents Seymour and Sage, partners under the name of Seymour & Co., to secure the following bond, executed and delivered at the same time: "Know all men by these presents, that we, George Goodwin, Charles Goodwin, Henry Goodwin, and Edward Goodwin, copartners in business under the name and firm of Goodwin & Co., are held and firmly bound unto Melancthon L. Seymour and Warren B. Sage, copartners under the name of Seymour & Co., in the penal sum of twelve thousand dollars, to be paid to them, the said obligees, their heirs, executors, and administrators, for which payment, to be well and truly made, we hereby bind ourselves, our heirs, executors, and administrators, firmly by these presents. The condition of which obligation is such, that whereas the said Goodwin & Co., paper manufacturers, have heretofore sent and expect hereafter to send paper to said Seymour & Co., commission merchants, for sale, the said Seymour & Co. making advances from time to time on invoices of paper received by them, and whereas it is understood between the parties that said Goodwin & Co. may need, for a longer or shorter period, greater advances than the VOL. XII.-6 paper in the hands of said Seymour & Co. may secure and indemnify them for, and said Seymour & Co. are willing to make said advances for said Goodwin & Co., provided that the said advances are never to exceed ten thousand dollars over and above the property in their hands at the time, nor to be made but within five years from the date hereof, and said sums and times to be at the option of said Seymour & Co. Now if we pay to said Seymour & Co. all such amounts as they may advance to us by note or otherwise, and save them harmless from all loss or damage by reason of such advances, then this obligation to be void, otherwise to continue in force. In witness whereof, &c." This mortgage was made expressly subject to the mortgage to the petitioner. It was recorded on the 27th of May, 1858. Under this bond and mortgage Seymour & Co. made advances to Goodwin & Co. from time to time, the amount due to them, upon which account, on the 20th day of March, 1861, was $25,312, no part of which had since been paid. On the 11th of February, 1859, Seymour & Co. loaned to Goodwin & Co. their notes to the amount of $5000, and on the same day Goodwin & Co. executed to them as security therefor a mortgage of the same land embraced in the mortgages before described, with certain other real estate not embraced therein, which mortgage was recorded on the 15th of February, 1859. This mortgage was also made subject to that of the petitioner, as to the land covered by the latter. The notes so loaned were not paid at maturity by Goodwin & Co., and Seymour & Co. were compelled to pay them. The petitioner had heard, prior to the 6th of March, 1861, that Goodwin & Co. had made certain mortgages to Seymour & Co., upon the same property which was mortgaged to him, but did not know for what precise purpose; and did not know at that time that Goodwin & Co. owed Seymour & Co., or that there had been any advances by Seymour & Co. to Goodwin & Co. under the mortgage of January 23, 1858, and did not know that Seymour & Co. had paid any of the notes loaned by them to Goodwin & Co. and secured by the mortgage of February 11, 1859. Seymour & Co. had 1 The precise conditions of both mortgages are given in full in the opinion. never given the petitioner notice of either of their mortgages, otherwise than by placing them on record; nor did they ever request the petitioner to make no further advances to Goodwin & Co. under his mortgage. Upon the hearing before the committee the petitioner offered evidence to prove that the note of $2700, indorsed by him on the 6th of March, 1861, was given in renewal of a former note, and was the last of a series of renewals of a note indorsed by him on the 8th of January, 1858. To this evidence the counsel for the respondents Seymour & Co. objected, but the committee received it, and found the fact upon the evidence. The respondents excepted. The committee having returned their report to the Superior Court, the respondents Seymour & Co. remonstrated against its acceptance on the ground of the erroneous admission of the above evidence, and the Court reserved for the advice of this Court the question as to the admissibility of the evidence, and as to what decree should be passed upon the facts. McFarland, for the petitioner. 1. The evidence was admissible. The fact was not important except as affected by matter set up by the respondents in their answer. They claimed a priority over the $2700 note by reason of advances made prior to its indorsement. To show that they were not entitled to this priority we offer evidence to show that the note, though of later date, is yet so connected with notes of an earlier date that the respondents are not entitled to the priority which they claim. We could not have anticipated, and so have adapted our allegations to, this claim of the respondents. The allegation of the time of the indorsement was not material. 1 Chitty Pl. 257. Renewal notes stand on the same ground as original ones: Bolles vs. Chauncey, 8 Conn. 389; Clark vs. Pond, 14 Id. 334; Smith vs. Prince, Id. 472. 2. Both the notes held by the petitioner are entitled to precedence, in taking the benefit of the security, over the mortgages of Seymour & Co. The petitioner's mortgage was in all respects a valid one, and constituted a first lien upon the premises to the amount of $6000. Crane vs. Deming, 7 Conn. 387. This mortgage was recorded, giving the respondents constructive, as they also had actual, notice of it. Their mortgages were both made expressly subject to this mortgage. In these circumstances the petitioner had a right, as he had agreed to do, to go on and make the indorsements contemplated by the mortgage and purporting to be secured by it, and could not be affected by the mortgages of Seymour & Co., which were not taken to secure a fixed indebtedness or an existing liability, but only to secure future advances and liabilities, which were to be made and assumed or not at their option. The petitioner had no notice that any advances had been made or liabilities assumed by them under their mortgage, and clearly could not be affected, if at all, without notice of such advances or liabilities. It is not enough that the petitioner knew of their mortgages. He was not bound to infer from the fact of the mortgages that advances had actually been made under them. Clearly he was not, if Seymour & Co. were not bound to infer from the petitioner's mortgage that he had actually made the indorsements secured by it. They were bound to infer this, because the petitioner's mortgage was a prior one, to which their mortgages were expressly made subject, while their mortgages, later than the petitioner's in time, were also inferior to it in equity. 4 Kent Com. 175; Hubbard vs. Savage, 8 Conn. 215; Ketchum vs. Jauncey, 23 Id. 123; Rowan vs. Sharps' Rifle Manuf. Co., 29 Id. 282; Wilson vs. Russell, 13 Maryl. 494, 533; U. States vs. Hooe, 3 Cranch 73; Shirras vs. Caig, 7 Id. 35; Evans vs. Bicknell, 6 Vez. 183; Wyatt vs. Barwell, 19 Id. 435; Gordon vs. Graham, 7 Viner Ab. 52, E. § 3; 1 Story Eq. Jur., §§ 421, 422. F. Fellowes and C. E. Fellowes, for the respondents. 1. The evidence that one of the notes was a renewal note was clearly inadmissible, since the allegations of the bill lay no foundation for it. The plaintiff simply complains that he indorsed the $2700 note in question subsequent to the mortgages and advancements of Seymour & Co., and has been obliged to pay the note. But this evidence, if admissible, could make no difference, since it does not prove that there has been any forfeiture or breach of the condition of the mortgage by reason of Goodwin & Co. failing to pay any obligation, debt, or liability, which was in existence at the time when the mortgages to Seymour & Co. became effective. Every note with Boswell's indorsement which was then in existence has been paid at maturity, without the contingent liability of Boswell by reason of his indorsement ever having become absolute. So far as it regards the present question, the renewal notes are to be considered as so many independent notes which Mr. Boswell was under no obligation to indorse, and which he was not compelled to indorse to save him harmless from his prior indorse ment. 2. The mortgages held by Seymour & Co. are entitled to priority over the mortgage of the petitioner. The two notes set forth in the bill and alleged to have been indorsed by the petitioner, the non-payment of which he claims was a breach of the condition of the mortgage entitling him to foreclosure, were made long subsequent to the execution and recording of the mortgages held by Seymour & Co., and long subsequent to the advances made by them upon the faith of their mortgages. In point of fact, therefore, Boswell stands to Seymour & Co. in the relation of a subsequent incumbrancer, and thus, in point of law, Seymour & Co. have the prior equity. That the mortgage to Boswell was executed prior to those of Seymour & Co. is of no importance, since neither the note nor indorsements above referred to were in existence when Seymour & Co.'s mortgages were recorded and when they made their advancements, and Boswell was under no obligation whatever to make those indorsements. He could make them or not, at his pleasure. His mortgage was a mere agreement that if he should choose to indorse for the mortgagors thereafter, he should have security under the mortgage-an agreement in no manner affecting the mortgages to Seymour & Co. to secure advances made before the indorsements. To hold otherwise would be, in effect, to tie up the estate forever, exclude the possibility of subsequent mortgages or sale, and to protect it even from attach |