junior and intervening incumbrances, in the same manner as if he were about to take a new and independent liability from the party, having no reference whatever to the prior incumbrance. Bank of Montgomery's Appeal, 36 Penn. St. 170; Miller v. Lockwood, 32 N. Y. (5 Tiff.) 293.

The sum named as the consideration of a mortgage, given as security for future advances or indebtedness and so stated therein, is of no importance. Miller v. Lockwood, 32 N. Y. (5 Tiff.) 293. But where it is given in bad faith for a greater sum than is due, to secure both a present indebtedness and future advances, as a pretended security, the mortgage would be invalid. Tully v. Harloe, 35 Cal. 302; Griffin v. New Jersey, etc., Co., 3 Stockt. 49; Fassett v. Smith, 23 N. Y. (9 Smith) 252.

Where a mortgage is to secure future loans to an amount certain, within a time limited, and the full amount is loaned and repaid, further loans within the time limited will be covered by the mortgage as against subsequent purchasers. Wilson v. Russell, 13 Md. 494. But a mortgage, given on the understanding that the mortgagor shall have future credit, where the agent of the mortgagee, who took the mortgage, knew that it would not have been given except upon that understanding, cannot be enforced for a different purpose; and where no future credit is given, and no advances are made, the mortgage is without consideration. Mizner v. Kussell, 29 Mich. 229. But the mortgage would be valid if the credit had been given, to the extent of the credit given, or if the advances were made on the faith of the mortgage. Marvin v. Chambers, 12 Blatchf. 495.

A mortgage to secure "future advances, for the purpose of carrying on the farm for the year 1870, in the county," etc., sufficiently specifies the debt to secure which it is given. Allen v. Lathrop, 46 Ga. 133. The validity of a mortgage to secure future advances is not affected by the fact that the advances are to be of building materials in lieu of money. Brooks v. Lester, 35 Md. 65.

A national bank, organized under the national banking act of June 3, 1864, cannot take a mortgage, under sections 8 and 28, upon real estate, as a security for a debt concurrently created, or for future advances. Kansas Valley National Bank v. Rowell, 2 Dill. 371. Vol. 2, 179.

A mortgage may be given to secure the mortgagee from loss by reason of a liability that he may subsequently incur. Goddard v. Sawyer, 9 Allen (Mass.), 78. So, a mortgage may be given to indem nify the mortgagee for becoming surety or indorser. Uhler v. Semple, 20 N. J. Eq. (5 C. E. Gr.) 288; Clark v. Oman, 15 Gray (Mass.),

521.

§ 11. Interest, costs, fees, etc. A provision in a bond and mortgage that, if default should be made in the payment of interest when due and for a certain number of days thereafter, the principal with arrears of interest should, at the option of the mortgagee, become due immediately, is valid. Rubens v. Prindle, 44 Barb. 336; Mobray v. Leckie, 42 Md. 474; Hosie v. Gray, 71 Penn. St. 198. Ante, Vol. 3, 414, 161. Where such provision is made in a mortgage, it is not necessary that any particular form of words should be used for the purpose of declaring such option. Harper v. Ely, 56 Ill. 179; Gulden v. O'Brien, 7 Phil. (Penn.) 93. And if the mortgagee bring proceedings, on such failure to pay interest to foreclose for the full amount of the indebtedness, he makes his election and is entitled to foreclose for the entire indebtedness. Kramer v. Rebman, 9 Iowa (1 With.), 114. See, too, Hartley v. Tatham, 2 Abb. (N. Y.) App. Dec. 333. After a default has occurred, and the mortgagee has made his election accordingly, he cannot be compelled to accept the interest and waive the stipulation. Nor is he estopped from asserting his right of election, by the commencement of a foreclosure suit prior to the expiration of the time after due limited for the payment of interest, the complaint wherein simply sets up a default in the payment of an installment of principal then due and of the interest. Nor does he waive his right to elect by receiving the installment of principal. Malcolm v. Allen, 49 N. Y. (4 Sick.) 448. And in an action to foreclose a mortgage given to secure a bond containing a 30 days interest clause, where the complaint alleges the non-payment of interest and the election of the mortgagee that the whole become due, an order staying proceedings until further default cannot be granted in the absence of proof of fraud or improper conduct on the part of the plaintiff. Bennett v. Stevenson, 53 N. Y. (8 Sick.) 508.

Where a mortgage was recorded in full, and provided for the payment of interest during the ten years of the mortgage, at the end of which the balance of principal was to be paid, without saying how often during such time, is sufficient notice to a purchaser of such premises that some periodical payments of interest were intended. Ackens v. Winston, 22 N. J. Eq. 444.

The lien of a mortgage attaches equally for the debt and for the costs necessarily incurred in the enforcement of his rights. Hurd v. Coleman, 42 Me. 182. And it is competent for the mortgagor to covenant to pay a reasonable attorney's fee in case of foreclosure, and it will be presumed that such fee is to be in addition to the costs given by law. Hitchcock v. Merrick, 15 Wis. 522; Cox v. Smith, 1 Nev. 161. And a court of equity, where a mortgage authorizes the payment

of the expenses of the mortgagee, may pay out of the funds in his possession the taxed costs, and also such counsel fees in behalf of the complainants, as, in the discretion of the court, it may seem right to allow. Bronson v. La Crosse R. R. Co., 2 Wall. (U. S.) 283; Pierce v. Kneeland, 16 Wis. 672.

A stipulation in a mortgage for two per cent to cover attorneys' fees, if resort be had to legal proceedings, is made in favor of the creditor, and is collectible with the principal debt. Simon v. Haifleigh, 21 La. Ann. 607; Rawson v. Hall, 56 Me. 142. But where a mortgage deed empowers the mortgagee in the usual manner to sell, rendering the surplus moneys to the mortgagor, after deducting the costs of the sale, and also, $100 as an attorney's fee, should any proceedings be taken to foreclose this indenture, such fee cannot be recovered upon a foreclosure in equity. Sage v. Riggs, 12 Mich. 313.

A reasonable attorney's fee in case of foreclosure may be stipulated for by an agreement subsequent to the mortgage, and recovered in the foreclosure suit. Rice v. Cribb, 12 Wis. 179.

Where in an act of mortgage it is stipulated that, in the event of the note not being paid at maturity, the attorney's fees for collection shall be paid by the debtor, if the suit for the collection of the note is unnecessarily brought, the fees cannot be secured by the creditor. Alexandrie v. Saloy, 14 La. Ann. 327.

A covenant in a mortgage for the payment by the mortgagor of all taxes that may be assessed upon the premises therein described cannot be enforced after the mortgage debt is discharged. Hitchcock v. Merrick, 18 Wis. 357. See, further, regarding interest, fees, etc., post, 558, Art. IV, § 9.

§ 12. Performance, etc. A tender and a refusal of the amount due on a mortgage before foreclosure, though after the law day, and though the tender be not always kept good, discharges the lien. Kortright v. Cady, 21 N. Y. (7 Smith) 343; Columbian Build. Assoc. v. Crump, 42 Md. 192; Potts v. Plaisted, 30 Mich. 149. But in view of the serious consequences to the holder of a mortgage on his refusal of a tender, and of the strong temptation to contrive merely colorable or sham tenders, not intended in good faith, the evidence should be full, clear and satisfactory that the tender was made in good faith, and was understood by such holder to be a present, absolute and unconditional tender, intended to be in full payment and extinguishment of the mortgage and not dependent upon his first executing a receipt or discharge, or any other contingency. Potts v. Plaisted, 30 Mich. 149. Where a check upon a bank for the amount of the interest due upon mortgage, tendered by the mortgagor to the mortgagee in payment of

a

such interest, is returned promptly to the mortgagor as not a legal tender, with the information that the interest must be paid at the residence of the creditor immediately, or he will proceed to foreclose the mortgage for both principal and interest, and the debtor has ample time to act on this information before the principal of the mortgage will become due for non-payment of the interest, but chooses to regard a tender he had made of the interest to a person not authorized to receive it, and by whom it was refused on that express ground, as a valid tender in law, equity will not relieve him from the position in which he has voluntarily placed himself. Grussy v. Schneider, 50 How. (N. Y.) Pr. 134.

The holder of a mortgage to whom a tender is proposed to be made is entitled to a reasonable opportunity to look over the mortgage and accompanying papers to calculate and ascertain the amount due; and if such papers are not present, he must be allowed a reasonable time to get them and to make the calculation; he is not bound under the penalty, or at the hazard of losing his entire debt, to carry at all times in his head, the precise amount due on any particular day. Potts v. Plaisted, 30 Mich. 149.

In New Jersey the rule is that an unaccepted tender of money secured by a mortgage on land, made after the day prescribed for payment, does not impair the lien of the mortgage. Such tender is neither a performance of the condition, nor a satisfaction of the debt; and its only effect is to stop the running of interest, and to subject the mortgagor to the necessity of resorting to his remedy in equity. Shields v. Lozear, 34 N. J. Law, 496; 3 Am. Rep. 256.

A mortgage is made void by a performance of the condition and no release or discharge is necessary, nor can the mortgage be continued in force by a parol agreement. Merrill v. Chase, 3 Allen, 339; Hoyle v. Cazabat, 25 La. Ann. 438; Griffin v. Lovell, 42 Miss. 402; Donnelly v. Simonton, 13 Minn. 301. But payment to a mortgagee does not extinguish the mortgage debt, if such is not the intention of the parties to the payment. New Haven Savings Bank v. McPartlan, 40 Conn. 90; Peck v. Minot, 3 Abb. (N. Y.) App. Dec. 465. So the renewal of a note secured by mortgage is not such a payment as will discharge the mortgage, unless so intended. Parkhurst v. Cummings, 56 Me. 155. And the deposit of the amount of a mortgage in a bank, with notice to the mortgagee, who thereupon receipted the bond and canceled the mortgage of record, is not a payment, where ten days afterward the bank stopped payment, and the money not having been drawn out, the receipt was canceled and a memorandum was appended to the record that the cancellation was entered by mistake by the VOL. IV.-69

mortgagee. Middlesex v. Thomas, 20 N. J. Eq. (5 C. E. Gr.) 39. And the rule that payment by a mortgagor is an extinguishment does not obtain where the payment is of an incumbrance existing before the conveyance to him. Abbott v. Kasson, 72 Penn. St. 183.

Where a married woman joins her husband in the execution of a mortgage, given to secure the purchase-money of land, and relinquishes her dower therein, and, afterward, during the life-time of the husband, his assignee sells all his property, including the mortgaged premises, and with the proceeds pays off the mortgage, the wife's right to dower in the mortgaged premises is revived. Atkinson v. Stewart, 46 Mo. 510; Hitchcock v. Harrington, 6 Johns. 290.

A sufficient lapse of time in certain cases will raise a presumption of payment of the mortgage, especially against the mortgagee or his assignee in possesssion. Buckmaster v. Kelley, 15 Fla. 180. But when a mortgagor has retained possession of the mortgaged premises for more than twenty years after the execution of the mortgage and has acknowledged the debt and paid interest upon it within twenty years, there is no presumption that the debt is discharged. Howard v. Hildreth, 18 N. H. 105; Wright v. Eaves, 10 Rich. Eq. (S. C.) 582. Nor will the presumption be raised although the mortgagee or his assigns are in possession when the mortgagor became insolvent and died before the debt fell due, and his vendee of the equity of redemption also became insolvent and removed from the State, never afterward returning. Brobst v. Brock, 10 Wall. 519. But the presumption of payment of a mortgage, arising from the lapse of over twenty years from the time when the mortgage money became due, will not be repelled by proof of a payment made by the mortgagor after he has sold nd conveyed the mortgaged premises to another person, so far as the purchaser and those claiming under him are concerned. The N. Y. Life Ins. & Trust Co. v. Covert, 29 Barb. 435; 6 Abb. (N. S.) 154; 3 Abb. Ct. App. 350; 3 Trans. App. 24. A payment by a mortgagor to the holder of the mortgage, made and received as a premium for an extension of the time for payment of the principal of the mortgage, should be credited on the mortgage as of the time when the payment was made. Laing v. Martin, 26 N. J. Eq. 93; Church v. Maloy, 9 Hun (N. Y.), 148

Each installment of a mortgage payable in installments is so far separate from the rest under the statute, that payment before decree, in a suit to foreclose for a single installment, puts an end to the suit. Brown v. Thompson, 29 Mich. 72. Money paid to a mortgagee by an insurance company under its agreement with the mortgagor, cannot be applied by him to the payment of the debt before it is due, without