covenant of seisin. (Sedgwick v. Hallenback, 7 John. 376.) The mortgagor has no such estate in the land before foreclosure as can be sold on execution. (Morris v. Mowatt, 2 Paige, 586.)

In general, a mortgage is only given to secure the repayment of money borrowed at the time, according to the terms of the contract, or for a pre-existing debt, or as a security for some obligation incurred by the mortgagee for the mortgagor, as where the former has become bail for the latter, or the like. But this form of contract sometimes takes a far wider scope. It often becomes necessary to provide for future advances and responsibilities, and it is desirable to do so without the trouble and expense of a new mortgage on every successive advance. The parties may, by their original agreement, provide for such a case. The mortgage should be for a sum large enough to cover the contemplated advances, and should express on its face its purpose and object. The future advances will be covered by the mortgage, or by a judgment, if that security is adopted, in preference to the claim under a junior intervening incumbrance, with notice of the agreement. (Truscott v. King, 2 Seld. 157.)

The principle is that subsequent advances cannot be tacked to a prior security, to the prejudice of a bona fide junior incumbrancer; but a mortgage, or a judgment, is always good, to secure future loans when there is no intervening equity. (Id.)

The case of Gordon v. Graham, decided by Lord Cowper a hundred and forty years ago, and which is cited by Jewett, J. in Truscott v. King, (supra,) with approbation, is an illustration of the principle on which the doctrine rests. In that case, A. mortgaged his estate to B. for a term of years, to secure a sum of money already lent to A., and also all other sums which should thereafter be lent, or advanced to him. A. made a second mortgage to C. for a certain sum, with notice of the first mortgage, and then the first mortgagee having notice of the second mortgage, lent a further sum. His lordship decreed that the second mortgagee should not redeem the first mortgage, without paying as well the money lent after, as that lent before, the second mortgage was made; for, he added, it was the folly of the second mortgagee with notice to take such security.

The supreme court, in Livingston v. McInlay, (16 John. 165,) applied this doctrine to a judgment entered up by confession, and held that where it was part of the original agreement at the time the judgment was entered, that it should be a security for future advances, beyond the amount then actually due to the plaintiff, they

saw no valid objection to it more than to a mortgage being held as security for future advances; so far, at least, as the amount of the condition of the bond. The same doctrine has been repeatedly held in this state, and in the supreme court of the United States, and in the courts of our sister states, and no distinction has been taken in this respect between a security by judgment and a security by mortgage. (Brinkerhoff v. Marvin, 5 John. Ch. R. 320. James v. Johnson, 6 id. 417; S. C. reversed in error, but not impairing it as to this question, 2 Cowen, 246. United States v. Hoe, 3 Cranch, 73. Shirras v. Craig, 7 id. 34. Conrad v. The Atlantic Ins. Co. 1 Peters, 386, 447. Leeds v. Cameron, 3 Sumner, 488. Hubbard v. Savage, 8 Conn. R. 215. Walker v. Snediker, 1 Hoff. Ch. R. 145.

Commercial Bank v. Cunningham, 24 Pick. 270. Monell v. Smith, 5 Cowen, 441. Lyle v. Discomb, 5 Bin. 585. Lansing v. Woodworth, 1 Sandf. Ch. R. 43. Barry v. Merchants' Ex. Co. Id. 280, 314.)

It was well remarked by Jewett, J. in Truscott v. King, (supra,) that in order to secure good faith, and prevent error and imposition in dealing, it is necessary that the agreement as contained in the record of the lien, whether by mortgage or judgment, should 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. (St. Andrew's Church v. Tompkins, 7 John. Ch. 14. Pettibone v. Griswold, 4 Conn. R. 158. Stoughton v. Pasco, 5 id. 442. Shepard v. Shepard, 6 id. 37. Hubbard v. Savage, 8 id. 215. Gales v. Henry, 6 Watts, 57. Walker v. Snediker, supra. Hart v. Chalker, 14 Conn. R. 77.)

Where a bond and mortgage are actually given to secure a particular debt therein mentioned, the mortgagee cannot, as against subsequent purchasers or incumbrancers, hold it as a lien for an entirely distinct and different debt, upon parol proof that it was intended to cover that debt also. (The Bank of Utica v. Finch, 3 Barb. Ch. 302.) But he does not lose his security by extending the time of payment, although such extension is in the form of a renewal of the note which was held as collateral security for the payment of the same debt; when it was not the intention of either party to discharge the mortgage security. (Id.)

A mortgage given for a present debt, and to secure future advances, should either be taken for a specific sum of money, sufficiently

large to cover the amount of the floating debt intended to be secured, or should specifically mention the sums thereafter to be advanced. It is presumed that either course would be free from objection. (Id. Truscott v. King, 2 Seld. 161.) The purpose and intent for which the security was executed may be shown by parol evidence. Such evidence does not contradict the written instrument.

But neither a mortgage or judgment can be rendered available to secure the party taking them, for future advances or responsibilities, by any subsequent parol agreement, in preference to the lien of a junior incumbrancer. (Id. Ex parte Hooper, 19 Ves. 477.)

SECTION II.

Of recording, and priority of mortgages and assignments.

The early statutes of this state required the registry of mortgages and of the defeasance thereof, but did not require them to be recorded in full length. (2 Greenl. 100.) At a later period mortgages were placed upon the same footing as other deeds with respect to the mode of their being recorded, and for nearly forty years there has been no essential difference between them. The older cases speak of mortgages being registered or unregistered; a language which is equally appropriate to the present practice.

By the existing law, every conveyance of real estate within this state, made after the passing of that act, is required to be recorded in the office of the clerk of the county where such real estate is situated; and every such conveyance not so recorded is declared to be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded. (1 R. S. 756, § 1.)

By the 2d section of the act, the clerks of the several counties are required to provide different sets of books for the recording of deeds and mortgages; in one of which sets all conveyances, absolute in their terms, and not intended as mortgages, or as securities in the nature of mortgages, are to be recorded; and in the other set, such mortgages and securities are to be recorded.

The 3d section provides that every deed conveying real estate, which by any other instrument in writing, shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage; and the person for whose benefit such deed shall be made,

shall not derive any advantage from the recording thereof, unless every writing operating as a defeasance of the same, or explanatory of its being designed to have the effect of a mortgage, or conditional deed, be also recorded therewith, and at the same time.

If a conveyance was intended only as a mortgage, there can be no good reason why the terms on which it is to be defeasible should not appear on its face. If, through inadvertence, it is taken as an absolute deed, the holder may comply with the terms of the statute, by making a written defeasance specifying the conditions on which it was intended to be given, and recording both together in the book of mortgages. If this be done before the rights of any third party have intervened, he will not be molested, and if he neglects it, he will only be in the same situation of every other mortgagee who neglects to have his security recorded. (White v. Moon, 1 Paige, 554.)

The statute concerning registry applies to mortgages of leasehold as well as of freehold estates. (Johnson v. Stagg, 2 John. 510. Berry v. The Mut. Ins. Co. 2 John. Ch. 603.) The registry under the former law, and of course the recording under the existing law, without due proof or acknowledgment, is not notice to a subsequent purchaser. (Frost v. Beekman, 1 id. 288.)

The statute does not make the registry of a mortgage indispensable. The omission only exposes the mortgagee to the hazard of losing his lien, in case of a subsequent bona fide purchaser, or to the postponement of it to a subsequent mortgage first recorded. As between the original parties, the acknowledgment and recording are not necessary to its validity; nor would the entire omission to record the power affect the sale as between them. (Berry v. The Mut. Ins. Co. 2 John. Ch. 603. Jackson v. Colden, 8 Cowen, 266.) Nor is priority of registry of any avail against actual previous notice of an unrecorded mortgage. (Id.)

The decisions in this state, referred to in the preceding section, permitting a deed absolute in terms, to be converted into a mortgage by parol evidence, are apparently adverse to the policy of the recording laws. Such security will not operate to the prejudice of subsequent bona fide purchasers or incumbrancers without notice. The decisions must be understood as applying only to the parties to the deed, and their representatives, and to those who become subsequent purchasers or mortgagees, with full notice that the deed absolute in terms was intended as a mortgage. Notice to the agent or attorney is, in such cases, notice to the principal. But the notice,

to supply the place of a recording of the mortgage, must be full and clear; must be more than barely sufficient to put the party on inquiry. (Jackson v. Van Valkenburgh, 8 Cowen, 260. Willard's Eq. Juris. 250, 251, 608. Fort v. Burch, 6 Barb. 60.) A junior mortgagee with notice of a prior unrecorded mortgage, cannot gain priority by recording his mortgage. Nor can a bona fide assignee of such a mortgage, without notice, unless his assignment be recorded before the prior mortgage. (Fort v. Burch, 5 Denio, 187.)

A second mortgagee who has neglected to have his mortgage registered, will not be relieved against a prior unregistered mortgage, unless he shows from non-delivery of possession, or other circumstances, that imposition has been or might be practiced upon him by or with the concurrence of the first mortgagee which could not be detected or guarded against by the exercise of ordinary diligence. The mere circumstance of leaving the title deeds with the mortgagor, is not of itself sufficient evidence of fraud so as to postpone the first mortgagee to a second mortgagee who has taken the title deeds without notice of the prior mortgage. There must be fraud, or gross negligence equivalent to fraud, on the part of the first mortgagee. The recording of a mortgage is with us a substitute for the deposit of the title deeds. (Berry v. Mutual Ins. Co. 2 John. Ch. 603.)

A bona fide purchaser of land, without notice of a prior unrecordod mortgage, holds the land discharged of its lien; and a subsequent fecording of the mortgage cannot affect his title, nor the title of his grantees with notice of the mortgage. (Jackson v. McChesny, 7 Cowen, 360.) If a mortgagee receive his mortgage with notice of a former one, and with the understanding that it is to have priority, the recording of his own first cannot give it preference. (Jackson v. Van Valkenburgh, 8 Cowen. 260.)

As the statute protects subsequent purchasers in good faith, and for a valuable consideration, it becomes important to understand the meaning of those terms. Something more is required than a mere valid consideration, sufficient to uphold the transaction between the parties. These words have received, in the courts of this state, a definite judicial construction. They import that the purchaser, before he had notice of the prior equity of the holder of an unrecorded mortgage, must have advanced a new consideration for the estate conveyed, or have relinquished some security for a preexisting debt due to him. The mere receiving of a conveyance in