Averill v. Loucks. ther answer to the amended bill. And if the plaintiffs neglect, within forty days after notice of the order to be entered on this decision, to amend their bill by making Hull a party thereto, and to pay the costs aforesaid, their bill is to be dismissed with costs. SCHENECTADY SPECIAL TERM, February, 1849. Paige, Justice. AVERILL VS. Loucks. A judgment or other security may be taken and held for future responsibilities and advances to the extent of the amount of the judgment or security. But to enable a creditor thus to hold a judgment or other security it must be a part of the original agreement that the judgment shall be a security for such responsibilities and advances. It cannot, as against third persons, be held to meet and cover new and distinct engagements subsequently entered into by the parties. Where a mortgage or judgment is taken for future responsibilities or advances, it seems that it will not cover further responsibilities or advances, as against an incumbrance of a third person obtained intermediate the judgment or mortgage and such further responsibilities and advances. Where a bond and warrant of attorney are given as a security for existing and future responsibilities, to continue until the judgment to be entered up on such bond and warrant shall be cancelled of record, the creditor has a right to hold such judgment as a security for any future responsibility assumed by him, until the same is cancelled of record. Until it is thus cancelled, the judgment, under such agreement, does not become functus officio, although there may have been a time, subsequent to the giving of the bond and warrant, when there was no liability on the part of the creditor, and no indebtedness from the debtor, to him. The supreme court, as a court of law, has always exercised an equitable jurisdiction over judgments entered up by confession, on bonds and warrants of attorney. And upon an application for relief, in such cases, the court will receive parol evidence in relation to the extent and object of the bond and warrant, and the consideration thereof. Taking a bond and warrant of attorney from one of two partners, for a partnership debt, extinguishes the liability of the other copartner. The debt, as a partnership debt, becomes merged in the judgment; and the individual liability of Averill v. Loucks. the judgment debtor is substituted in the place of the joint liability of both partners. Where real estate was originally purchased by one of two partners, and paid for out of his individual funds, and the only interest of the partnership in the premises is on account of improvements made thereon with the funds of the partnership, the actual interest, in the premises, of the partner advancing the purchase money-at least his individual interest therein-is liable to be sold on execution against him, But it seems that the partnership creditors have a claim, in equity, to have the whole value of the improvements applied in payment of their debts, in preference to the separate creditors of the individual partners. And the equitable interest in such improvements, chargeable with the debts of the partnership, will pass under an assignment made by the copartners for the benefit of the partnership creditors; and upon such equitable interest a judgment obtained by a separate creditor against the copartner who purchased the real estate will not, as against the partnership creditors, be a lien. If improvements are made upon such property, with the partnership funds, intermediate the giving of a judgment by one of the partners as a security for future responsibilities, and the incurring of such responsibilities by the judgment creditor, the equitable interest of the other copartner to be reimbursed his share of the partnership funds applied to the making of such improvements, is prior in point of time to the lien of the judgment; upon the principle that an incumbrance which intervenes between a judgment and further advances takes priority over the latter. The lien of a judgment does not attach, in equity, upon the mere legal title to land, existing in the defendant, when the equitable title is in a third person. And if a purchaser under the judgment has notice of the equitable title, before his purchase and the actual payment of the money, he cannot protect himself as a bona fide purchaser. THIS was a motion by the assignees of Loucks & Gray for a rule to compel William S. Bellinger, the owner of the judgment in this suit, to enter a satisfaction thereof, and to direct the sheriff to sell, on the execution issued upon the judgment, the individual property of the defendant, and not to sell the premises secondly described in the sheriff's advertisement of sale. The defendant George P. Loucks, and Morgan Gray, were general partners, doing business under the name of Loucks & Gray. On the 4th of September, 1848, they failed, and made an assignment of all their real and personal estate to T. O. Bailey and P. I. Loucks, in trust, for the benefit of the creditors of Loucks & Gray, and of George P. Loucks. The judgment in this suit was docketed on the 11th of July, 1846. It was enter Averill v. Loucks. ed up on the 8th of July, 1846, on a bond conditioned for the payment of $2000 and a warrant of attorney. The bond and warrant were in the usual form. They were given by George P. Loucks, the defendant, on the 1st of July, 1846, to the plaintiff, under an agreement that they were to be held by him as a continuing security for all endorsements theretofore made and thereafter to be made by the plaintiff for the defendant and for the firm of Loucks & Gray, until the judgment to be entered up on such bond and warrant should be cancelled of record. The plaintiff, under this agreement, continued from time to time to endorse for Loucks & Gray until the 30th of June, 1848, when he endorsed a draft for Loucks & Gray for $2000; which he afterwards became liable to pay, and actually did pay. The plaintiff, on the 19th of October, 1848, issued an execution on the judgment, to the sheriff of the county of Montgomery. On the 8th of January the plaintiff, for the sum of $2070,59, assigned the judgment to George Yost and William I. Bellinger. And Yost assigned the same to Bellinger, who was a creditor of Loucks & Gray. The assigned property was not sufficient to pay all the debts provided for in the assignment. The sheriff had advertised the real estate of the defendant for sale. The premises secondly described in his advertisement of sale were originally purchased by the defendant with his individual funds, but improvements had been made thereon by the firm of Loucks & Gray, with the funds of the partnership, and for the purposes of the partnership. T. B. Mitchell, for the assignees of Loucks & Gray, &c. D. G. Lobdell, for William I. Bellinger. PAIGE, J. A judgment or other security may be taken and held for future responsibilities and advances, to the extent of the amount of the judgment or security. But to enable a creditor to hold a judgment or other security for future responsibilities and advances, it must be a part of the original agreement that the judgment, or security, should be a security for such Averill v. Loucks. (Brinckerhoof v. Marvin, 5 McInlay, 16 John. 165; MorIt cannot, as against third per responsibilities and advances. John. Ch. 325; Livingston v. rell v. Jenkins, 5 Cowen, 441.) sons, be held to meet and cover new and distinct engagements subsequently entered into by the parties. (Troup v. Wood, 4 John. Ch. 246.) A mortgage or judgment once paid cannot be restored or revived by any subsequent agreement of the parties. (Id. Marvin v. Vedder, 5 Cowen, 671. De La Vergne v. Evertson, 1 Paige, 181.) And a mortgage, or a judgment entered upon a bond and warrant of attorney, cannot be enlarged beyond the amount of the mortgage, or the condition of the bond, and held as a security for moneys not mentioned therein, as against a subsequent incumbrancer. (St. Andrew's Church v Tompkins, 7 John. Ch. 14. Bergen v. Boerum, 2 Caines, 256.) And where a mortgage or judgment is taken for future responsibilities or advances, it seems that it will not cover further responsibilities or advances, as against an incumbrance of a third person obtained intermediate the judgment or mortgage and such further responsibilities and advances. (5 John. Ch. 326.) In this case the bond and warrant of attorney of the defendant Geo. P. Loucks was given to Lewis Averill as a continuing security for all endorsements theretofore made and thereafter to be made by Averill for the defendant, and for the firm of Loucks & Gray, until the judgment to be entered up on such bond and warrant of attorney should be cancelled of record. The endorsement for which the judgment is sought to be held as security was made on the 30th of June, 1848, prior to the failure of Loucks &. Gray, and prior to their assignment to Bailey and P. I. Loucks. On the 30th of June, 1848, Averill endorsed a draft for Loucks & Gray for $2000, which he afterwards became liable to pay, and did actually pay. Upon the cases cited I think Averill had a right to hold the judgment as security for his liability on account of this endorsement. It was a part of the original agreement that Averill should hold the judgment as a security for subsequent endorsements. The cases in relation to a judgment or mortgage being held to meet or cover new Averill v. Loucks. and distinct engagements subsequently entered into by the parties, are not applicable. I do not regard as of any importance, (so far as the subsisting validity of the judgment is concerned,) the fact that there may have been a time between the giving of the bond and warrant of attorney and the 30th of June, 1848, when there was no endorsement of Averill for Loucks & Gray, or for Loucks, and no indebtedness from them, or either of them, to him. Averill had a right, under the original agreement, to hold the judgment as his security for any future endorsement made by him for Loucks & Gray, or for Loucks, until the judgment was cancelled of record. Under this agreement the judgment did not become functus officio until it was cancelled of record. It is objected by the counsel of the assignees of Loucks & Gray, that parol evidence is inadmissible to vary the terms of the bond and warrant of attorney. The assignees themselves first resorted to parol evidence to show the extent and object of the bond and warrant. Besides, one of the assignees states, in his affidavit, that the bond and warrant of attorney were given to indemnify Averill against certain endorsements previously made by him, and that the notes so endorsed had been paid and taken up by Geo. P. Loucks. Bellinger, the present owner of the judgment, certainly had a right to rebut or qualify this parol evidence, by evidence of the same character. If parol evidence is to be excluded on both sides, then no ground remains for the application to have the judgment satisfied of record. Without this parol evidence the bond must be taken to be as it purports, on its face, an ordinary bond for the payment of money. And it is not pretended that Geo. P. Loucks has paid to Averill any part of the money stipulated to be paid to him, by the condition of the bond. But I apprehend that upon this application parol evidence is admissible to explain the extent and object of the bond. The application is to the equitable jurisdiction of the court. This court, as a court of law, has always exercised an equitable jurisdiction over judgments entered up by confession, on bond and warrant of attorney. (Frasier v. Frasier, 9 John. 80.) And it has generally been found necessary, on ap |