Page:Federal Reporter, 1st Series, Volume 6.djvu/68

 56 FEDERAL REPORTER. �and was advised that it would be. The attorney teatifies that about the middle of April he was advised by Taxis that such was the agreement, and that afterwards they came to him and he drew the mortgage for them. There is no testimony to contradict these statements. They must, therefore, be taken as true, — that this mortgage was executed in pursuance of an agreement made before the liability of Vogeler was incurred ; and it would seem to be the law that a mortgage executed in pursuance of such an agreement is a valid and legal security. Burdock y. Jackson, 15 N. B. R. 318. In re The Jackson Iran Manufg Co. 15 N. B. R. 438, Judge Brown, after a very fuU review of the American and English cases, says: "I should feel no hesitation in sustaining a security given in pursuance of a valid promise made at the time of the advance to give specifie security, afterwards executed ; but to sustain such security given in pursuance of a promise in general terms would open the door to the very evils the bankrupt law was intended to prevent. " �I think it is very clear that the true doctrine is as indicated by the judge. To sustain a mortgage upon a prior agreement to give it, it must be shown that the promise was to give a specifie security, and it must have been made as the induce- ment upon which the advance was made. In this case, if we are to believe Mr. Vogeler, the promise was to give a definite and specifie security, to-wit, to give a mortgage upon the Fifth street store, goods, and fixtures, and upon the Broadway fixtures, and that this promise was the sole inducement to make the advances ; and, furthermore, that the mortgage was executed before the advances were completed ; and I have n i doubt, under such circumstances, that it was not necessary that the agreement to give the mortgage should have been in writing. �The case of Loyd v. Strohridge, 16 N. B. R. 198, is not in con- flict with this opinion. In that case the promise to give security was a general promise "to give security if required." If such had been the agreement in this case, I would say with- out hesitation that it could not have been enforced. Again, ��� �