unregistered is still a valid conveyance, and binds the estate, except as against subsequent bona fide purchasers and mortgagees, whose conveyances are recorded. If, therefore, the purchaser at the sale on execution, under the judgment, has his deed first recorded, he will then gain a preference by means of the record over the mortgage, and the question of right turns upon the fact of priority of the record in cases free from fraud. This is also the case as to purchasers deriving title respectively under a fraudulent grantor, and a fraudulent grantee. The rule in Pennsylvania is different, and the docketed judgment is preferred, and not unreasonably; for there is much good sense, as well as simplicity and certainty, in the proposition, that every encumbrance, whether it be a registered deed or docketed judgment, should, in cases free from fraud, be satisfied according to the priority of the lien upon the record, which is open for public inspection. In one instance, a mortgage will have preference over a prior docketed judgment, and that is the case of a sale and conveyance of land, and a mortgage taken at the same time, in return, to secure the payment of the purchase money.

discussed elaborately the question whether a subsequent judgment against the debtor will injuriously affect a prior mortgage, and he concludes very clearly, that it will not, either by the Roman or the French law, for the judgment is res inter alios acta. See a translation of that discussion taken from the Revue de Droit François et Etranger, of Jan. 7, 1844, in the American Law Magazine, for July 1844.

a Jackson v. Dubois, 4 Johns. Rep. 216. Jackson v. Terry, 13 ibid. 471. Jackson v. Town, 4 Cowen, 605. Ash v. Ash, 1 Bay, 304. Ash v. Livingston, 2 ibid. 80. Penman v. Hart, ibid. 251. Hamilton v. Levy, 1 M'Cord's Ch. Rep. 114. The rule remains the same since the New-York Revised Statutes. Schmidt v. Hoyt, 1 Edw. Ch. Rep. 652. Ledyard. Butler, 9 Paige Rep. 132.

Semple v. Burd, 7 Serg. & Rawle, 286. Friedley v. Hamilton, 17 ibid. 70. Jacques v. Weeks, 7 Watts, 261. So in North Carolina, a judgment creditor is preferred to a prior unregistered mortgage, and is not effected by notice of it. Davidson v. Cowan, 1 Bad. & Dev. Eq. Cases, 470. Same law in Ohio, Bank of Cleveland v. Sturges, 2 McLean, 341.

The deed and the mortgage are considered as parts of the same contract, and constituting "one *174 act; and justice and policy equally require that no prior judgment against the mortgagor should intervene, and attach upon the land, during the transitory seisin, to the prejudice of the mortgage. This sound doctrine is, for greater certainty, made a statute provision in New-York."

There has been much discussion on the question whether the registry be of itself, in equity, constructive notice to subsequent purchasers and mortgagees. The weight of authority in the English books, and Mr. Coote says the weight of principle also, is against notice founded on the mere registration of a deed; and Lord Redesdale thought, that if the record was held to be notice, it would be very inconvenient, for the principle would have to be carried to the extent of holding it notice of the entire contents of the deed, and to be notice whether the deed was duly or authorizedly recorded or not.b But Lord Camden was evidently of a different opinion, though he held himself bound by precedents to consider the registry not notice. In this country the registry of the deed is held to be constructive notice of it to subsequent purchasers and mortgages; but we do not carry the rule to the extent

New-York Revised Statutes, vol. i. 749, sec. 5.

▷ Latouch v. Dusenberry, 1 Sch. & Lef. 157. Bushnell v. Bushnell, ibid. 90. See also, the opinion of Sergeant Hill, in 4 Mad. Ch. Rep. 286, note. Morecock v. Dickins, Amb. 678.

Frost v. Beekman, 1 Johns. Ch. Peters v. Goodrich, 3 Conn. Rep.

◄ Johnson v. Stagg, 2 Johns. Rep. 510. Rep. 298. 18 Johns. Rep. 544, S. C. 146 Hughes v. Edwards, 9 Wheat. Rep. 489. Thayer v. Cramer, 1 M'Cord's Ch. Rep. 395. Evans v. Jones, 1 Yentes' Rep. 174. Shaw v. Poor, 6 Pick. 86. Lasselle v. Barnett, 1 Blackford's Ind. Rep. 150. Plume . Bone, 1 Green's N. J. Rep. 63. N. Y. Revised Statutes, vol. i. 761, sec. 33. But the recording of the assignment of a mortgage, is not of itself notice of such assignment to the mortgagor, his heirs, or personal representatives, so as to invalidate payments to the mortgagee. Ibid. 763, sec. 41.

apprehended by Lord Redesdale; and a deed unduly registered, either from want of a valid acknowledgment or otherwise, is not notice according to the prevailing opinion in this country."

*175 *(4.) Future advances.

The ancient rule was, that if the mortgagor contracted further debts with the mortgagee, he could not redeem without paying those debts also. The principle was to prevent circuity of action; but it was not founded upon contract, and Lord Thurlow said, it had no foundation in natural justice; though I think the rule evidently had a foundation in the civil law.

The rule is

And in Napier v. Elam, 6 Yerger's Tenn. Rep. 108, it was held, that if the vendor did not disclose the fact, that a previous encumbrance existed upon the property, it was a fraud that equity would relieve against, although the previous encumbrance was registered. In the case of Talmage v. Wilgers, before the Ass. V. Ch., in New-York, it was adjudged that a mortgagee who releases a portion of the mortgaged premises, is not bound prior to such release, to search the records as to conveyances by the mortgagor subsequent to his own mortgage. The record is not constructive notice and binding the mortgagee in that case, and the mortgagee is not bound to allow upon the mortgage the value of the lot released. New-York Legal Observer, vol. i. 42.

Heister v. Fortner, 2 Binney's Rep. 40. Hodgson v. Butts, 3 Cranch, 140. Frost v. Beekman, 1 Johns. Ch. Rep. 300. Sutherland, J., James v. Morey, 2 Cowen, 246. 296. Kerns v. Swope, 2 Watts' Penn. Rep. 75. Lessee of Shults v. Moore, 1 McLean's Rep. 520. It would not be notice to affect a purchaser. But see Morrison v. Trudeau, 13 Martin's Louis. Rep. 384, where such a deed is said to operate as notice to third persons. By the Missachusetts Revised Statutes of 1835, part 2, tit. 1, c. 69, sec. 31, the recording the deed or writing creating or declaring a trust, is made equivalent to actual notice of the same to purchasers and creditors.

Shuttleworth v. Laycock, 1 Vern. 245. Baxter v. Manning, ibid. 244. Anon., 3 Salk. 84. Francis's Maxims of Equity, 1.

This was clearly and learnedly shown by Mr. Justice Jackson, in 15 Muss. Rep. 407. See also Story's Com. on Equity Jurisprudence, vol. ii. 276, and Institutes of the Civil Law of Sprin, by Aso. & Manuel, b. 2, tit. 11, ch. 3, sec. 2, n. 71. In Lee v. Stone, 5 Gill & Johns. 1, it was held, that a mortgagor seeking to redeem, must pay not only the mortgage debt, but all other debts due from him to the mortgagee; but if the mortgagee seeks a foreclosure, the mortgagor can redeem on paying the mortgage debt only.

now limited to the right to tack the subsequent debt to the mortgage, as against the heir of the mortgagor, and a beneficial devisee; but it cannot be permitted as against creditors, or against the mortgagor's assignee for valuable consideration, or devisee for the payment of debts. So, a mortgage or judgment may be taken, and held as a security for future advances and responsibilities to the extent of it, when this is a constituent part of the original agreement; and the future advances will be covered by the lien, in preference to the claim under a junior intervening encumbrance, with notice of the agreement. The principle is, that subsequent advances cannot be tacked to a prior mortgage, to the prejudice of a bona fide junior encumbrancer; but a mortgage is always good, to secure future loans, when there is no intervening equity. It is necessary *that the agreement, as contained in the record *176 of the lien, should, however, give all the requi

So he can if a subsequent mortgagee, or a judgment creditor, files a bill to redeem.

Troughton v. Troughton, 1 Ves. 86. Anon., 2 ibid. 662. Heams v. Bance, 3 Atk. 630. Powis v. Corbat, ibid. 556. Lowthian v. Hasel, 3 Bro. 162. Hamerton v. Rogers, 1 Ves. jun., 513. Lord Alvanley, in Jones v. Smith, 2 ibid. 376.

Marshall Ch. J., in Shirras v. Caig, 7 Cranch, 34. It was adjudged by the Vice-Chancellor, after a full consideration of the cases, that a mortgage to secure future advances was valid, without showing on its face the object of it. It is sufficient if the extent of the lien be clearly defined. The policy of the registry laws does not affect the question of the validity of it in this respect. But a subsequent mortgage on the same premises for an existing debt, takes precedence of all advances made after such second mortgage is executed. Craig v. Tappin, 2 Sandford Ch. R. 78. Gardner v. Graham, 7 Vin. Abr. 52, E. pl. 3. ney's Rep. 585. Hughes v. Worley, 1 Bibb, 200. 16 Johns. Rep. 165. Hendricks v. Robinson, 2 Johns. Ch. Rep. 309. Brinckerhoff v. Marvin, 5 ibid. 326. James v. Johnson, 6 ibid. 420. Shirras v. Caig, 7 Cranch's Rep. 34. Story, J., in Conrad v. Atlantic Insurance Company, 1 Peters' U. S. Rep. 448. Hubbard v. Savage, 8 Conn. Rep. 215. Averill v. Guthrie, 8 Dana, 83. Leeds v. Cameron, 3 Sumner's Rep. 492. Brown v. Frost, 1 Hoff. Ch. Rep. 41. Walling v. Aiken, 1 McMullan's S. C. Rep. 1.

Lyle v. Ducomb, 5 Bin-
Livingston v. M'Inlay,

site 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 encumbrance. This is requisite to secure good faith, and prevent error and imposition in dealing. 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; and an agreement to that effect in writing could not, as I apprehend, affect a subsequent encumbrancer, unless he had dealt with the mortgagor with full knowledge of the agreement.c

(5.) Doctrine of taking.

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

⚫ Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughton v. Pasco, 5 ibid. 442. St. Andrew's Church v. Tompkins, 7 Johns. Ch. Rep. 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. Rep. 326. Terhoven . Kerns, 2 Barr, 96.

bEx parte Hooper, 19 Ves. 477. Walker v. Snediker, 1 Hoffman's Ch. Rep. 146.

In New-Hampshire by statute of 3d July, 1829, mortgages to secure future 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 in the Supreme Court of Massachusetts, in October, 1846, 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.