LADUE V. THE DETROIT & MILWAUKEE RAILROAD Co. sion in Truscott v. King is to be considered as equally applicable to a mortgage, then I cannot resist the conviction that it is in direct conflict with the principles which necessarily result from the uniform course of decision in that State - holding a mortgage to be a mere security for, and incident of, the debt, incapable of a separate and independent existence. Having examined the cases relied upon by the complainant's counsel, as tending to controvert the conclusions. at which I have arrived, I will now refer to those of an opposite tendency, some of which expressly hold the record to be notice of the intervening conveyance or incumbrance. In Collins v. Carlisle, 13 Ill., 254, there was a mortgage to secure future advances, and a contract subsequent in date and time of record for the sale of the land by the mortgagor, both recorded. It was held, the mortgage was valid for those advances only which were made prior to the recording of the contract. The principle is not discussed, but it seems to be taken for granted that the record of the contract was notice as to advances afterwards made. In Kramer v. Farmers' and Mechanics' Bank, 15 Ohio, 253, it was held, that a mortgage to indemnify against endorsements to be made for the mortgagor is valid and constitutes a lien, which takes precedence of the lien of a judgment rendered after such endorsements have been made. But, it is said, the lien of a judgment would probably be prefered to the lien of the mortgage for advances made subsequent to the recovery of the judgment. The liability of the mortgagee had attached. before the subsequent judgment, and, therefore, the point was not involved. But in the subsequent case of Spader v. Lawler, 17 Ohio, 371, which was also the case of a mortgage to secure future advances, it was held, that the mortgage must be postponed to a mortgage subse LADUE V. THE DETROIT & MILWAUKEE RAILROAD Co. quently recorded, but before the future advances were made, thus directly holding the record notice as to advances thereafter made under the first recorded mortgage; in other words, treating the first as a subsequent mortgage in reference to advances made after the record. of the second. It is true that one of the grounds upon which the decision seems to be placed, is that the record of the mortgage (for the advances,) ought to give notice of the amount of the incumbrance. The first case, so far as I have been able to discover, which fully meets and discusses the question upon principle, is that of Terhoven v. Kerns, 2 Barb., 96. It was the case of a judgment to secure future advances, which were optional; and it was held, that such judgment, as to advances made after the rendition of a subsequent judgment, was not not a lien as against the latter. The judgments are treated by the Court as standing upon the same grounds as mortgages, and the question is discussed generally. It is held, that a mortgage to secure future advances, which are optional, does not take effect between the parties as a mortgage or incumbrance until some advance has been made that, if not made until after another mortgage or incumbrance has been recorded, it is, in fact, as to such after advances, a subsequent and not a prior incumbrance; and that the record of the subsequently recorded mortgage is notice, as to such after advances, as much as if the mortgage first recorded had not been executed until after such advances were made. Barr, 86, and Note, “a," when the mortgagee is when they are optional.) The doctrines of this case were fully as strongly re-affirmed in Bank of Montgomery's Appeal, 36 Penn., 170. (See also, Parmenter v. Gillespie, 9 as to distinction between cases bound to make the advances, and The doctrine of these cases is pronounced reasonable by Sanford, Judge, delivering the opinion of the Court in Boswell v. Goodwin, 31 Conn., 74, and he pointedly LADUE . THE DETROIT & MILWAUKEE RAILROAD CO. asks why such mortgage should not be treated "in all respects as if executed at the time when the advances are made." But one of the Judges dissented as to this point, and the case was decided upon other grounds. Judge Redfield, late Chief Justice of Vermont, ably discusses this question in a note to the case of Boswell v. Goodwin, Amer. Law Reg., vol. 12, p. 92, arriving substantially at the same conclusion as that at which I have arrived. And Mr. Washburn (in 1 Wash. on Real Property, p. 542,) says it seems now to be the general rule. The counsel for the complainant have strongly urged the inconvenience which must result, especially to banks and bankers, (who are accustomed to take such mortgages) by requiring an examination of the record every time they are called upon to make such advances under such a mortgage. Like Judge Redfield (in the note above cited) I have not "been able to comprehend" this hardship. It is, at most, but the same inconvenience to which all other parties are compelled to submit when they lend money on the security of real estate - the trouble of looking to the value of the security. But, in truth, the inconvenience is very slight. Under any rule of decision they would be compelled to look to the record title when the mortgage is originally taken. At the next advance they have only to look back to this period, and for any future advance only back to the last: which would generally be but the work of a few minutes, and much less inconvenience than they have to submit to in their ordinary daily business in making enquiries as to the responsibility, the signatures and identity of the parties to commercial paper. But if there be any hardship, it is one which they can readily overcome, by agreeing to make the advances; in other words, by entering into some contract, for the performance of which, by the other party, the mortgage may operate as a security. They • HORTON v. SAUNDERS. can hardly be heard to complain of it as a hardship that the Courts refuse to give them the benefits of a contract which, from prudential or other considerations, they were unwilling to make, and did not make until after the rights of other parties have intervened. Courts can give effect only to the contracts the parties have made, and from the time they took effect. The decree must be reversed, and the bill dismissed; and the appellants must recover their costs in both Courts. MARTIN Ch. J. and COOLEY J. concurred. CAMPBELL J. did not sit in this case. Richard Horton v. John S. Ingersoll and Edward Saunders. Parties to bill of foreclosure. - Although complainant, in a foreclosure suit, is not entitled to make persons defendants who claim, by title paramount to the mortgage, in order to cut off their adverse claims, yet where such adverse claimant is also owner of an interest in the equity of redemption, it is proper to make him a party for the purpose of foreclosing such interest. Mortgagee cannot use tax title adversely to regular title. — Taxes due upon mortgaged lands are as much a lien upon the mortgaged interest as upon the equity of redemption; and where one having a second mortgage allows the 'land to be sold for taxes, and obtains a tax deed, he cannot use such deed adversely to the first mortgage. It inures to the protection and not the destruction of the regular title. Heard July 8. Decided July 10. Appeal in Chancery from Berrien Circuit. The complainant filed his bill on the 17th day of August, 1863, to foreclose a mortgage bearing date September 3, 1856, made by John S. Ingersoll, one of the defendants, and Arnold P. Lane, (since deceased) to the complainant, to secure the payment of $110. The mortgage was duly recorded. 13 MICH.-2A. HORTON v. SAUNDERS. The defendant, Saunders, was made a party to the bill under the clause which is commonly inserted in such bills, and which is in these words: "And your orator expressly charges the fact, that Edward Saunders has, or claims to have, rights and interests in the premises described in said indenture of mortgage, or in some part or parts thereof, as subsequent purchaser or incumbrancer, or otherwise." The bill was taken as confessed against Ingersoll. The defendant, Saunders, filed an answer setting forth that he was the owner in fee simple of the mortgaged premises, the title to which he obtained as follows, viz.: The taxes being delinquent, said land was sold by the Treasurer of Berrien county, on or about October 1, 1860, to Samuel Stratton. And on the ninth day of January, 1862, the Auditor General gave a deed therefor to said Stratton, which deed was duly acknowledged and recorded. That said Stratton afterwards, on or about June 11, 1862, conveyed said premises, by deed, to Robert P. Saunders, who with his wife, afterwards and on or about the sixth day of August, 1862, conveyed the premises to the defendant, Edward Saunders. Said deeds were duly acknowledged and recorded, and Saunders claimed to be the absolute owner of the and made no other defense than that derived from and Auditor General to Stratton, as above stated. A general replication was filed. premises by virtue thereof, and set up no other claim through the deed from the The complainants proved the execution of the mortgage and notes; the death of Lane, one of the mortga gors; the amount due on the mortgage; a quit claim deed, of Ingersoll and wife, dated September 30, 1856, to said Lane and wife, of the mortgaged premises, duly acknowledged and recorded. A mortgage made by said Lane and wife, of the mortgaged premises, dated 21st of |