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 encumbrance, was a judgment; but the encumbrancer 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;a and it yielded only in a qualified degree to this doctrine of substitution, when the subsequent encumbrancer took the place of a *prior one by purchasing in *177 the first mortgage, and tacking to his own. substitution in the Roman law was not carried so far as to disturb the vested rights of intermediate encumbrancers, and only went to the extent of the first mortgage so purchased. 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 of the second encumbrance is not constructive notice, as we have already seen) of the intervening encumbrance. 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

a

Dig. 20. 4. 12. 3.

The

b Heineccii, Elem. 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. Dig. 20. 4. 16. Story's Comm. 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 mortgagees 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. sec. 2, n. 71, and this they consider to be the extent to which the civil law went.

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. The English doctrine of tacking was first solemnly established in Marsh v. Lee, under the assistance of Sir Matthew Hale, who compared the operation to a plank in a 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. 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 encumbrancer 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 encumbrance; and, the equities between the second and third encumbrancers 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.d

*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 registered deed, nor give a

• Lord Eldon, 11 Ves. 619.

b2 Vent. 337.

.2 P. Wms. 491.

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, 8 Price, 475.

priority of right to commit a fraud. This leaves the doctrine of 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. Liens are to be paid according to the order of time in which they respectively attached. This is the policy and meaning of our registry acts, and, consequently, all encumbrancers are to be made parties to a bill to foreclose, that their claims may be chargeable in due order. There is no natural equity in tacking, and when it supersedes a prior encumbrance, it works manifest injustice. By acquiring a still more antecedent encumbrance, the junior party acquires, by substitution, the rights of the first encumbrancer 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 ac- *179 quired, and 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.d

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.

Grant v. U. S. Bank, 1 Caines' Cases in Error, 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 on a system of artificial reasoning, and encouraged fraud. See, also, 11 Serg. & Rawle, 223. 3 Pick. 50. 6 Munf. 560.

• Haines v. Beach, 3 Johns. Ch. Rep. 459.

• In case of conflicting equities, precedency of time gives the advantage in right. 1 Bibb, 523. 1 Blackford's Ind. Rep. 91. With respect to priori

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 it 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 case. 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 re

ties in the case of contribution and liens, 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 seized 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 charged. But if there be several co-heirs, and the judgment creditor collects the debt from a part of the inheritance alloted 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 seized 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, Co. 11, b. Clowes v. Dickenson, 5 Johns. Ch. Rep. 235. Conrad v. Harrison, 3 Leigh's Rep. 532. See also 6 Ohio Rep. 227. 6 Paige Rep. 35. 525. 10 Serg. & Rawle, 455, S. P. Shannon v. Marselis, Saxton's N. J. Ch. Rep. 413. 421, and Cowden's Estate, 1 Barr's Penn. Rep. 274–277, S. P.

3

quisite fact, by the exercise of ordinary diligence and understanding. So, notice of a deed is notice of its contents, and notice to an agent is notice to his principal. A purchaser with notice, from a purchaser without notice, even in the case of an endorsement of a note, can protect himself under the first purchaser, who was duly authorized to sell; and a purchaser without notice, from a purchaser with notice, is equally protected, for he stands perfectly innocent."

There is, also, this further rule on the subject, that the purchaser of an estate in the possession of tenants, is chargeable with notice of the extent of their interests as tenants; for, having knowledge of the tenancy, he is bound to inform himself of the conditions of the lease. The general rule is that possession of land is notice to a purchaser of the possessor's title. The effect of notice,

• 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 Hoffman's Ch. Rep. 166.

Smith v. Hiscock, 14 Id. Bracken v. Miller, 4 Watts & Bumpus v. Platner, 1 Johns.

b Hascall v. Whitmore, 19 Maine Rep. 102. 449. Griffith v. Griffith, 9 Paige Rep. 315. Serg. 102. Sweet v. Southcote, 2 Bro. 66. Ch. Rep. 219. Godfrey v. Disbrow, 1 Walker's Mich. Ch. Rep. 260. To constitute a purchaser without notice, it is not sufficient that the contract should be made without notice, but that the purchase money should be paid before notice. And though a purchaser may be held as a trustee for the cestui que trust, yet if he believed the title to be good, he is entitled to the encumbrances from which he relieved the land, and to the permanent improvements which he has made, and to his advances for the support of the wife and children, and which are to be set off against the profits for which he is chargeable, and the encumbrances and improvements are a charge on the land, unless absorbed by the residue of the profits. Wormley v. Wormley, 1 Brockenbrough, 330. S. C. 8 Wheaton, 421. The doctrine of constructive notice was fully examined in the case of Griffith v. Griffith, 1 Hoffman's Ch. Rep. 153, and in the case of Brush v. Ware, 15 Peters' U. S. Rep. 93; and it is of two kinds, that which arises from testimony, and that which results from a record.

• Daniels v. Davison, 16 Vesey, 249. Chesterman v. Gardner, 5 Johnson's Ch. 29. Dyer v. Martin, 4 Scammon Rep. 147. But the constructive notice, arising from tenancy, does not extend beyond the tenant's title, or apply to the title of the lessor under whom the tenant holds. Lord Eldon, in