*

quent advances cannot be tacked to a prior mortgage, to the prejudice of a bona fide junior incumbrancer; but a mortgage is always good, to secure future loans, when there is no inter176 vening equity. (e) It is necessary that the agreement, as contained in the record of the lien, should, however, give all the requisite information as to the extent and certainty of the contract, so that a junior creditor may, by inspection of the record, and by common prudence and ordinary diligence, ascertain the extent of the incumbrance. This is requisite to secure good faith, and prevent error and imposition in dealing. (a) It is the settled rule in England, and in this country, that a regularly executed mortgage cannot be enlarged, by tacking subsequent advances to it in consequence of any agreement by parol; (b) 2 and an agreement to that effect, in writing, could not, as I apprehend, affect a subsequent incumbrancer, unless he had dealt with the mortgagor with full knowledge of the agreement. (c)

(e) Gardner v. Graham, 7 Vin. Abr. 52, E. pl. 3. Lyle v. Ducomb, 5 Binney, 585. Hughes v. Worley, 1 Bibb, 200. Livingston v. M'Inlay, 16 Johns. 165. Hendricks v. Robinson, 2 Johns. Ch. 309. Brinckerhoff v. Marvin, 5 Ibid. 326. James v. Johnson, 6 Ibid. 420. Shirras v. Craig, 7 Cranch, 34. Story J., in Conrad v. Atlantic Insurance Company, 1 Peters, U. S. 448. Hubbard v. Savage, 8 Conn. 215. Averill v. Guthrie, 8 Dana, 83. Leeds v. Cameron, 3 Sumner, 492. Brown v. Frost, 1 Hoff. Ch. 41. Walling v. Aiken, 1 McMullan (S. C.), 1.

(a) Pettibone v. Griswold, 4 Conn. 158. Stoughton v. Pasco, 5 Ibid. 442. St. Andrew's Church v. Tompkins, 7 Johns. Ch. 14. Garber v. Henry, 6 Watts, 57. But if a mortgage or judgment be taken as a security for future advances, and subsequent judgment or mortgage duly registered intervenes, it is suggested that further advances, after that period, would not be covered. Brinckerhoff v. Marvin, 5 Johns. Ch. 326. Terhoven v. Kerns, 2 Barr, 96.

(b) Ex parte Hooper, 19 Vesey, 477. Walker v. Snediker, 1 Hoff. Ch. 146. (c) In New Hampshire, by statute of 3d July, 1829, mortgages to secure future

1 A mortgage taken to secure future advances is valid, although it does not show upon its face the real character of the transaction. Collins v. Carlile, 13 Ill. 254.

2 A mortgage to cover subsequently acquired property is void as to that property. Otis v. Sill, 8 Barb. (N. Y.) 102; Barnard v. Eaton, 2 Cush. 294; Codman v. Freeman, 3 Id. 306; Chapin v. Cram, 40 Maine, 561, but it will hold articles upon which labor has been expended after the making of the mortgage. Perry v. Pettingill, 33 N. Hamp. 433. So annexing a strip of land to premises previously mortgaged does not so subject such piece to the operation of the mortgage as to carry it to the purchaser under the mortgage sale. Lawrence v. Delano, 3 Sandf. (N. Y.) 333. But if the mortgage covered materials out of which the articles were finished, the mortgagee is entitled to the additional value. Jenckes v. Goffe, 1 R. I. 511. Where live-stock is mortgaged, the natural increase and produce become subject to the mortgage. Forman v. Proctor, 9 B. Mon. 124. This rule applies to the mortgage of slaves. A mortgage of property not in existence, as of future crops, given in March. is not good. Milliman v. Neher, 20 Barb. (N. Y.) 37.

(5.) Doctrine of tacking.

It is the established doctrine in the English law, that if there be three mortgages in succession, and all duly registered, or a mortgage, and then a judgment, and then a second mortgage upon the estate, the junior mortgagee may purchase in the first mortgage, and tack it to his mortgage, and by that contrivance "squeeze out" the middle mortgage, and gain preference over it. The same rule would apply if the first as well as the second incumbrance was a judgment; but the incumbrancer who tacks must always be a mortgagee, for he stands in the light of a bona fide purchaser, parting with his money upon the security of the mortgage. This doctrine, harsh and unreasonable as it strikes us, was not authorized in the Roman law to the extent to which it is carried in the English law. The general maxim in that system, on the subject of pledges and hypothecations, was qui prior est tempore potiore est jure; (d) and it yielded only in a qualified degree to this doctrine of substitution, when the subsequent incumbrancer took the place of a

* prior one by purchasing in the first mortgage and tacking 177 it to his own. (a) The substitution in the Roman law was

not carried so far as to disturb the vested rights of intermediate incumbrancers, and only went to the extent of the first mortgage so purchased. (b) In the English law, the rule is under some reasonable qualification. The last mortgagee cannot tack, if, when he took his mortgage, he had notice in fact (for the registry or docket

Liabilities are invalid. So by the Revised Statutes of Massachusetts, ch. 74, sec. 5, a delivery of subsequently acquired personal property by the mortgagor to the mortgagee does not render the mortgage, as to such subsequent property, valid as against subsequently attaching creditors, unless delivered with the intention to ratify the mortgage, and unless the mortgagee retained open possession of the same, until the time of such attachment. In Jones v. Richardson, 10 Metcalf, 481, it would appear that the delivery and possession of subsequently acquired goods, except under the special provision in the statute, would not be valid under the mortgage as against attaching creditors.

(d) Dig. 20, 4, 12, 3.

(a) Heineccii, Elm. Jur. Civ. secund. ord. Pand. part 4, lib. 20, tit. 3, sec. 35. Opera, tom. v. part 2, p. 350. Dig. 20, 4, 3, 5. Pothier, ad Pand. Ibid.

(b) Dig. 20, 4, 16. Story's Com. on Eq. Jurisprudence, vol. ii. 276, note. Vide supra, p. 136, note. So, by the Spanish law, the third mortgagee, by purchasing in the first mortgage, acquires no other right than what strictly belonged to the mortgage, and the intermediate mortgages are not prejudiced by any act to which they were not parties, or did not consent. Institutes of the Civil Law of Spain, by Aso. & Manuel, b. 2, tit. 11, ch. 3, 2, n. 71, and this they consider to be the extent to which the civil law went.

of the second incumbrance is not constructive notice, as we have already seen) of the intervening incumbrance. But if he acquired that knowledge subsequent to the time of taking his mortgage, he may then purchase and tack, though he had notice at the time of his purchase, and though there was even a bill then pending by the second mortgagee to redeem. The courts say, that up to the time of the decree settling priorities, the party may tack, or struggle for the tabula in naufragio. (c) The English doctrine of tacking was first solemnly established in Marsh v. Lee, (d) under the assistance of Sir Matthew Hale, who compared the operation to a plank in shipwreck gained by the last mortgagee; and the subject was afterwards very fully and accurately expounded by the Master of the Rolls, in Brace v. Duchess of Marlborough. (e) It was admitted, in this last case, that the rule carried with it a great appearance of hardship, inasmuch as it defeated an innocent second incumbrancer of his security. The assumed equity of the principle is, that the last mortgagee, when he lent his money, had no notice of the second incumbrance; and the equities between the second and third incumbrancers being equal, the latter, in addition thereto, has the prior legal estate or title, and he shall be preferred. In the language of one of the cases, he hath "both law and equity for him." The legal title and equal equity prevail over the equity. (ƒ) 1

* 178

*The Irish Registry Act of 6 Anne has been considered as taking away the doctrine of tacking, for it makes registered deeds effectual according to the priority of registry. The priority of registry is made the criterion of title to all intents and purposes whatsoever; and this Lord Redesdale considered to be the evident intention of the statute, but that it did not exclude any thing which affects the conscience of the party who claims under the reg

(c) Lord Eldon, 11 Vesey, 619.

(d) 2 Vent. 337.

(e) 2 P. Wms. 491.

(f) The law established by these decisions has been regularly transmitted down in Westminster Hall to this day. Belchier v. Butler, 1 Eden, 523. Frere v. Moore, & Price, 475.

1 The doctrine of tacking mortgages, therefore, depends on the assumption that the legal fee is in the mortgagee, and the very basis of it would seem to be subverted in those systems of jurisprudence where, at law as well as in equity, the fee is held to remain in the mortgagor; and such is the rule in New York and other American states. Ante, p. 154, and note 4

istered deed, nor give a priority of right to commit a fraud. (a) This leaves the doctrine of a notice of a prior unregistered deed in full force; and this is the true and sound distinction which prevails in the United States, and I presume that the English law of tacking is with us very generally exploded. (b) Liens are to be paid accord ing to the order of time in which they respectively attached. This is the policy and meaning of our Registry Acts, and, consequently, all incumbrancers are to be made parties to a bill to foreclose, that their claims may be chargeable in due order. (c) There is no natural equity in tacking, and when it supersedes a prior incumbrance, it works manifest injustice. By acquiring a still more antecedent incumbrance, the junior party acquires, by substitution, the rights of the first incumbrancer over the purchased security, and he justly acquires nothing more. The doctrine of tacking is founded on the assumption of a principle which is not true in point of fact; for, as between *A., whose deed is honestly acquired, and *179 recorded to-day, and B., whose deed is with equal honesty acquired, and recorded to-morrow, the equities upon the estate are not equal. He who has been fairly prior in point of time has the better equity, for he is prior in point of right. (a)

(a) Sch. & Lef. 157, 430. In M'Neil v. Cahill, 2 Bligh, 228, on appeal to the House of Lords, in an Irish case, it was declared, that if the deed posterior in date and execution, be first registered, even with notice of the other deed, it has priority both in law and equity; but this does not apply to the case of a fraudulent priority of registry.

(b) Grant v. U. S. Bank, 1 Caines Cas. 112, Feb. 1804. This was the earliest case that I am aware of in this country, destroying the system of tacking. In that case I had the satisfaction of hearing that profound civilian, as well as illustrious statesman, General Hamilton, make a masterly attack upon the doctrine, which he insisted was founded upon a system of artificial reasoning, and encouraged fraud. See, also, 11 Serg. & Rawle, 223; 3 Pick. 50; 6 Munf. 560.1

(c) Haines v. Beach, 3 Johns. Ch. 459.

(a) In case of conflicting equities, precedency of time gives the advantage in right. 1 Bibb, 523. 1 Blackf. (Ind.) 91. With respect to priorities in the case of contribution and liens, it may be here observed that a judgment creditor is not entitled to go against the land of a subsequent purchaser, so long as there is land of the debtor remaining unsold, and he is entitled to resort to the land of the purchaser, to the extent only of that part of his debt which remains unsatisfied after the debtor's estate has been exhausted. So, if a debtor sells part of his land charged with a judgment, and dies seised of the residue, his heirs are bound to satisfy the judgment, so far as the assets go, and they are not entitled to any contribution from the purchaser, for "the heir sits in the seat of his ancestor," and the assets that descend to him are first to be

1 See Adams's Eq. 3d Am. ed. 163, and n.

With the abolition of the English system of tacking, we are relieved from a multitude of refined distinctions, which have given intricacy to this peculiar branch of equity jurisprudence. The doctrine of notice is also of very extensive application throughout the law of mortgage, and is very greatly surcharged with cases abounding in refinements. It is, indeed, difficult to define, with precision, the rules which regulate implied or constructive notice, for they depend upon the infinitely varied circumstances of each The general doctrine is, that whatever puts a party upon. an inquiry, amounts, in judgment of law, to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. (b) So, notice of a

case.

charged. But if there be several co-heirs, and the judgment creditor collects the debt from a part of the inheritance allotted to one of them, such heir is entitled to contribution from his co-heirs. On the other hand, where there is no equality, there is no contribution, as if a person seised of three acres of land, charged with a judgment, sells one acre to A., the two remaining acres are first chargeable in equity with the payment of the debt; and if he should sell another acre to B., the remaining acre in his hands, or in those of his heir, is chargeable in the first instance with the judgment debt as against B., as well as against A., and if that prove insufficient, then the acre sold to B. ought to supply the deficiency in preference to the acre sold to A., for when B. purchased, he took the land chargeable with the debt in the hands of A., in preference to the land already sold to A. Between purchasers in succession at different times, of different parts of the estate of the judgment debtor, there is no contribution, for there is no equality of right between them. Sir William Herbert's case, 3 Co. 11, b. Clowes v. Dickenson, 5 Johns. Ch. 235. Conrad v. Harrison, 3 Leigh, 532. See, also, 6 Ohio, 227; 6 Paige, 35, 525; 10 Serg. & Rawle, 455, S. P.; Shannon v. Marelis, Saxton Ch. (N. J.) 413, 421, and Cowden's Estate, 1 Barr, 274-277, S. P.1

(b) A purchaser of lands from an incorporated company is chargeable with notice of all the restrictions upon its power to hold and convey lands contained in its charter. Merritt v. Lambert, 1 Hoff. Ch. 166.

1 In accordance with this principle, it has been held, that if the mortgagee, with notice of the rights of subsequent purchasers, releases a part of the premises primarily liable for the payment of his debt, he cannot enforce his lien against the residue, without deducting the value of the part released. Stuyvesant v. Hall, 2 Barb. Ch. 151. But the mere recording of a subsequent deed or mortgage is not notice to the prior mortgagee. Ibid. King v. McVicker 3 Sandf. Ch. 192 Blair v. Ward, 2 Stockt. (N. J.) 119.

Though the principle of resorting to the mortgaged premises sold subsequently to the mortgage, in the inverse order of their alienation, is firmly established in New York, it has been questioned in some recent English cases, and denied in the case of Dickey v. Thompson, 8 B. Mon. 312. 2 Story's Eq. Jurisprudence, sec. 1233, a. Barnes v. Racsten, 1 You. & Coll. N. R. 401. In favor of the doctrine, see Lyman v. Lyman, 32 Vermont, 79. Skeel v. Spraker, 8 Paige, 182.