a future advance mortgage is valid as against a subsequent mortgage and parol evidence is admissible to show the note and mortgage were given to secure a contingent liability even though the mortgage appears to secure an absolute debt
How later courts described this case
- a future advance mortgage is valid as against a subsequent mortgage and parol evidence is admissible to show the note and mortgage were given to secure a contingent liability even though the mortgage appears to secure an absolute debt
Written by the judges who cited it.
The opinion
Hall, J.
Two questions arise on the record in this case. They are, (1) where a mortgage appears upon its face to secure an absolute debt, such as a note described therein, is parol evidence admissible to show that the note and mortgage were in fact given to secure a contingent liability of the mortgagee as the mortgagor’s surety to an amount not greater than said debt ? (2) In the absence of fraud is such a mortgage valid against a subsequent mortgage? Both of these questions must be answered in the affirmative on the authority of the following cases: McKinster v. Babcock, 26 N. Y. 280 ; Lawrence v. Tucker, 23 How. [U. S.] 14 ; Goodheart v. Johnson, 88 Ill. 61 . As to the first question, see also, Jones on Chatt. Mort. sec. 90; Foster v. Reynolds, 38 Mo. 553 ; Baile v. Ins. Co., 73 Mo. 386 . And as to the second question, see also, Blincoe v. Lee, 12 Bush (Ky.) 358 ; Varney v, Hames, 68 Mo. 442 ; Jones on Chat. Mort. secs. 82 and 88.
Judgment reversed and cause remanded.
All concur.