The principle established in Marsh v. Lee, that a third mortgagee, without notice, may buy in the first mortgage, and thereby exclude a second mortgagee, does not appear to be received in any court in this country. The system of registration is universal here, and it is considered to be the policy of that system, that a mortgage shall not be a security for more than the debt expressed in the mortgage, as against other incumbrances. In New York, Connecticut, Ohio, and Virginia, the doctrine has been expressly condemned and excluded.

In Grant and others v. Bissett and others, 1 Caines' Cases, 112, the chancellor had decided in favor of the practice of tacking, but his decision was reversed in the Court of Errors, where it was decided that the statute which directs that mortgages which are first registered, shall have preference according to the times of the registry, had abolished, with respect to registered mortgages,

the right of tacking a junior to a senior mortgage, and thus excluding an intervening one; since the allowing of a junior mortgage to be paid first, would be denying to the older one the preference given to it by statute. "Under our laws, and the decisions of our own courts," said the chancellor in Bridgen v. Carhartt, Hopkins, 234, 235, "a registered mortgage is regarded as an incumbrance for the debt expressed in the mortgage, and for no greater sum. Such is the sense of the act concerning mortgages; and though the great objects of the registry are to secure mortgagees, to give notice to purchasers, and to regulate priorities, it seems also to be the spirit of all our statutes respecting mortgages, that a registered mortgage shall never become a security between any parties, for any other debt than that specified in the registered instrument. The English doctrine, by which a mortgage subsequent to a second mortgage may be tacked

to the first, in exclusion of an intermediate mortgage, has been adjudged by the Court of Errors, to be inconsistent with our law concerning registered mortgages, 1 Caines' Cases in Error, 112. The English doctrine of tacking has thus been rejected, in the only adjudged case in which any attempt to enforce it appears to have been made in our courts."

"We have not adopted, in this State," said Huntington, J., in Osborn v. Carr, 12 Connecticut, 196, 208, "the doctrine of tacking mortgages, so as to give priority to a third mortgagee over an intervening one. This is a consequence of the admitted rule, that the registry of a deed, is, here, constructive notice, and equivalent to actual notice, of the specific mortgage, which is recorded. .

The doctrine of tacking, as understood in England, and which is merely giving priority to a third mortgagee, as to his mortgage, over an intermediate incumbrance, by buying in the legal title, cannot exist here, because the record of the second mortgage is equivalent to actual notice of its existence. Such has always been the law of this State.

of tacking was fully established. It was a precedent subsequently followed with evident reluctance, and which the courts in Westminster Hall did not feel at liberty to overrule. It may be added, that this doctrine is generally exploded in the United States, by which we are relieved from a multitude of refined distinctions, which have given intricacy to this peculiar branch of equity jurisprudence. (4 Kent's Com. 178, 179.")

In Ohio, it is declared, that it has ever been held in that State, that the principle of tacking, as applied to mortgages, or to mortgages and judgments, cannot be allowed; Brazee and others v. The Lancaster Bank and others, 14 Ohio, 318, 321.

In a late case in Virginia, this doctrine was examined at considerable length, and considered to be unreasonable in itself, and opposed to the policy of the regis tration acts. "This whole doctrine of tacking," said Baldwin,

"unless in the case of further advances originally provided for by contract, is extremely harsh and unreasonable. Natural justice obviously requires that valid incumbrances should be paid according to their priority in point of time. The first incumbrance is an appropriation of the property by the consent of the owner, or the operation of law, to the satisfaction of a just demand; and so a second incumbrance is an appropriation, in like manner, of what shall remain after satisfaction of the first. The first incumbrancer

who, after a second incumbrancer, enlarges his demand beyond the effect of his original contract, is in truth, as regards the second, only a third incumbrancer; and a third incumbrancer is nothing more as regards his original demand, though he purchases in the first incumbrance.

"The doctrine is justified by no one, upon the principles of natural justice, and rests for its support upon artificial reasoning. It was introduced and is sustained upon the ground, that the mortgagee entitled to its benefit has the advantage of the legal title, and has equal equity, and therefore the law shall prevail. But the assumed equality of equity is not well founded. There is no color for it except in the idea that each claimant is a bona fide purchaser for a valuable consideration; but that does not produce equality in point of right. He whose incumbrance is thus overreached is prior in point of time, and at least equal in equity; and, therefore, should have the benefit of the maxim, Qui prior est in tempore potior est in jure.

"The elements of the doctrine, it will be seen, are the possession by the preferred mortgagee of the legal title, and the pre-existence or accession of a distinct equity, without notice of the mesne incumbrance. Hence it is obvious, that it could never have been introduced into a country enjoying the benefits of a general registry, intended to give notice to the whole world of all conveyances and incumbrances, and to supply

Co. v. M'Clanachan et als., 2 Grat. tan, 280, 300, 301, 303, 304.

In Kentucky, some earlier cases had apparently recognized the equity of tacking; Bank of Kentucky v. Vance's Administrators, 4 Littell, 168, 173; Nelson's Heirs v. Boyce, &c., 7 J. J. Marshall, 401, 405; but in a late case the existence of this principle seems to be considered,doubtful. "When a prior mortgage," said the court, "does not provide for subsequent liabilities or advances, the British doctrine of tacking all such liabilities as shall have been incurred, or all such advances as shall have been made, on the faith of the property thus mortgaged, and without actual notice of a subsequent mortgage thereon, has not been conclusively established in this court. And whether it shall be recognized here, as either authoritatively settled or as consistent with principle or analogy, we shall not now pause to determine or to consider:" Averill v. Guthrie, 8 Dana, 82, 84.

[The doctrine, that a purchase in good faith, and without notice,

gives the purchaser an equity, which a subsequent notice cannot take away, and which he may protect against antecedent equities, by procuring a conveyance of the legal title, has been assailed as unjust, but would seem to be a necessary consequence of the preference, which, between equal rights, should be awarded to superiority of diligence. Thus, a chattel sold successively to dif ferent persons, will belong to him to whom it is first delivered, or who first clothes his title with the possession; Shaw v. Levy, 17 S. & R. 99; Winslow v. Leonard, 12 Harris, 15; 1 Smith's Lead. Cas. 1083, 7th Am. ed.; and of two assignees, of the same chose in action, he will be preferred, in England, and in many of the States of the Union, who first gives notice. of the assignment to the trustee or debtor, who owes or holds the obligation which forms the subject of the assignment; post, vol. 2, notes to Basset v. Nosworthy, and Ryall v. Rowles. That the holder of an equity, who neglects or fails to procure a conveyance of the legal title, should be postponed to a claimant whose estate is subsequent in date to his own, but who has guarded his interest with the forms of law, is therefore equally consistent with analogy and reason; and the cases which apparently tend the other way, seem to have turned on the rule, which makes the registration of a deed notice, and are not in point, where the question arises between unregistered equities, or when the registry acts are from any cause inappli

cable. This view is sustained by the cases of Baggaly v. Guthrie, 2 Jones' Equity, 80, and Carroll v. Johnston, Ib. 120, which decide in accordance with the decisions in England, that when equities are equal in point of merit, each having been acquired in good faith, and without notice, and the junior equity gets the legal title, chancery will not intervene to take away the advantage which it confers, although its acquisition may have been with full notice of, and for the express purpose of obtaining priority over the elder equity; Coote on Mortgages, 383, 409. "It is," said Pearson, J., in Baggaly v. Guthrie, "a familiar learning, that one who has, without notice, acquired an equity, may afterwards protect it, by acquiring the legal title. The latter purchaser or incumbrancer, becomes, on payment of his money, an honest claimant in equity, and is entitled, if he can, to protect his claim. He is not bound to look for protection, until he has ascertained that danger exists; Adams, 232, (162.)" So in Phillips v. Crammood, 2 W. C. C. R. 441, an equitable pledge or mortgage was postponed to an assignment for the benefit of creditors, which, although subsequent in date, passed the legal title. The court said that neither party was a purchaser for value, the equities of both were equal, and he must prevail who had the law.

There would consequently seem to be nothing to prevent the holder of a third mortgage, from obtaining priority over a second, of which he was ignorant at the

time of taking his own, and which has not been placed on record, by buying in the first, or obtaining a conveyance of the legal title in any other way, although the question is one of little practical importance, because it cannot arise unless both mortgages are unrecorded, when it will always be easier to record the third, than to resort to the expedient of purchasing the first.

It is necessary to remember, that to render the legal title a protection against a prior equity, the holder must be a purchaser in good faith, in the sense in which equity defines a bona fide purchaser, and must, consequently, have bought on the faith of a real or pretended legal title, as well as for value and without notice; post, notes to Basset v. Nosworthy. It is therefore doubtful, whether one who buys a mere equity, with full knowledge of its real nature, can acquire an advantage over prior equities, by the subsequent acquisition of the legal title, although the point was held differently in Baggaly v. Guthrie, and Carroll v. Johnston; and the pledge of an equity growing out of a contract of sale, held to give the rights incident to a purchaser for value.]

There is another branch of the doctrine of tacking, quite distinct from that considered in the principal case under which, when a mortgagee has made further advances to the mortgagor, and taken his bond, binding himself and his heirs, the mortgagee may tack such bond debt to his mort

gage, as against the heir or devisee, who upon a bill filed to redeem is not allowed to do so without paying the bond as well as the mortgage debt; but this is admitted to be only a matter of practice, to prevent cireuity of action, and it is never allowed to the prejudice of another incumbrancer, or creditor, whose claim is of equal degree with the bond debt; see Chase v. M'Donald and Ridgley, 7 Harris & Johnson, 161, 196, 197; Coombs v. Jordan, 3 Bland, 284, 330; Lee and Wife, and Jordan v. Stone and M' William, 5 Gill & Johnson, 2, 22; Downing, &c. v. Palmateer, 1 Munroe, 64, 70; Hughes and Ballinger v. Worley, 1 Bibb, 200, 201; Colquhoun v. Atkinsons, 6 Munford, 550, 556; Siter, Price & Co. v. M' Clanachan et als., 2 Grattan, 280, 299: Robinson v. Urquhart, 1 Beasley, 515. In South Carolina, this rule has been laid down in much larger terms, it is said there, that on a bill filed by the mortgagor to redeem, he must pay not only the mortgage debt, but all other debts he

may Owe the mortgagee, whether by bond or simple contract; the reason being, that as the legal title is in the mortgagee, by breach of the condition, the mortgagor will not be permitted to redeem until he has satisfied all the mortgagee's equitable demands; but on a bill filed by a mortgagee to foreclose the equity of redemption, only the money due on the mortgage can be demanded; Walling v. Aiken, 1 M'Mullan's Equity, 2, 10, 13. The rule was laid down in the same