Kramer et al. v. The Farmers' and Mechanics' Bank of Steubenville et al. IN BANK. ants to the amended bill, and prays that they may be ruled to answer, &c. Dec. Term, 1846. On the 16th January, 1843, Richard Ellison, one of the judgment creditors, filed his answer, setting forth his judgment, claiming that it was a lien upon the lands mortgaged, and to be preferred to the mortgages to the bank. This judgment was rendered at the March term of the Court of Common Pleas of Carroll county, 1842. Execution was issued and levied upon a part of the lands in controversy. At the May term of said Court of Common Pleas, 1843, the other defendants, who were judgment creditors, filed demurrers to the bill, and at the same term John McDowel filed his answer. In this, he sets forth his mortgages upon the premises in controversy claims that his is the preferable lien — charges that complainants had notice of his mortgage — prays a sale of the mortgaged premises, &c. At the August term of the Court, 1843, Hanlin and F. A. Wells filed their answer to the supplemental bill. At the same term Alexander Doyle filed his answer to the original and supplemental bill. In his answer he sets forth his mortgages, which bear date the 25th day of May, 1840. The conditions of these mortgages were, that whereas the said Alexander Doyle had theretofore indorsed the paper of the said Wells, Henry & Co., and had also promised to make further indorsements, it was provided that if the said Wells, Henry & Co. should indemnify and save harmless the said Doyle, then the said deed to be void, &c. The respondent stated further, that, relying upon this indemnity, he had continued to indorse the paper of the said Wells, Henry & Co.; that he was liable to the bank as security for them; that his mortgages were preferable liens to the mortgages of McDowel, or to the liens of the judgment creditors; that they were next in point of time to the mortgages of the bank, and if those mortgages were held not to be valid, then that his lien was to be preferred to all others; and in such event he prayed that the premises might be sold, and the avails applied to his indemnity, &c. Kramer et al. v. The Farmers' and Mechanics' Bank of Steubenville et al. 1846. At the May term of the Court, 1843, the case came on for In Bank. hearing upon the demurrer of the judgment creditors, which Dec. Term, were overruled, and the cause referred to a master to ascertain the amount due the complainant, and upon their respective claims, with the origin of said debt, and the nature thereof; the amount due to McDowel, and the several judgment creditors, with the interest thereon; the dates, and nature of the respective liens, &c., with power to take testimony, &c., and with orders to have the mortgaged premises appraised, &c., return to be made at the next term of the Court. In pursuance of this order, the premises were appraised, and at the August term, 1843, the master made his report. In this report he ascertained the amounts due the several creditors having liens upon the property, either by mortgage or otherwise, with the date of the commencement of the respective liens, the consideration of the several debts secured by mortgage, &c. By this report it appears that there was due to the bank on the mortgage of Alexander Wells, $2,636.64; and that the amount due from Wells, Henry & Co., was $14, 549.18. That the amount of liabilities secured by the mortgages to Alexander Doyle, was $14,968.09, and that judgments have been rendered against him upon these liabilities, in favor of the trustees of the bank. That the amount due John McDowel, was as follows: From Francis A. Wells, $15,240; from James Henry, $7,948; from Robert Hanlin, $4,238.93. To this report, no exception was taken. At the same term of the Court, to wit, at the August term, 1843, the case came on for hearing upon the bills, answers, exhibits, testimony, and master's report. On the hearing, the Court found that the mortgage deeds purporting to be executed by Alexander Wells, on the 16th and 30th days of July, 1838, were duly executed, and that there was due to the then complainant the sum of $2,636.64, which was intended to be secured by said mortgages. That the several mortgage deeds, 1846. Kramer et al. v. The Farmers' and Mechanics' Bank of Steubenville et al. IN BANK. dated February 4, 1839, executed by Francis A. Wells, James Dec. Term, Henry, and Robert Hanlin, respectively, to the bank, were intended to secure the sum of $14,549.18, due, at the date of the decree, for principal and interest, from Wells, Henry & Co. The Court further found that the said Wells, Henry and Hanlin, did execute the several mortgages to Alexander Doyle, mentioned in the bill, and made part of Doyle's answer; and that the same were valid and subsisting liens upon the premises therein described; and that the said Doyle, relying thereon, had indorsed the paper of Wells, Henry & Co., and had become, and was then liable, by reason of his indorsements, in the sum of $14,549.18, for principal and interest. That the said mortgages to John McDowel were duly executed, in manner and form as set forth, and for the purposes in said bill specified; but that the same had lost their priority in consequence of not being recorded in due time; and that the other judgments and mortgage liens were correctly stated and set forth in the master's report. The Court thereupon adjudged and decreed, that the said mortgages given to the bank, being given to secure other debts than those previously contracted, and due at the time of their respective dates, were void under the charter of said bank, and that the mortgages to Alexander Doyle, and filed with his answer, were the first valid and subsisting liens upon the premises therein described. That the said Doyle, having indorsed the paper of the said Wells, Henry & Co. to a large amount, which was not paid by them, but returned under protest, and the said Wells, Henry and Hanlin, having failed to indemnify and save harmless the said Doyle, from all lossand harm the refrom, and that judgments by reason thereof have been rendered against Doyle to a large amount, to wit, to the amount of $14,549.18, in favor of the trustees of the Farmers' and Mechanics' Bank of Steubenville, the Court thereupon found, that the condition of the said mortgage deeds to said Doyle had been forfeited, and that the said Doyle was well entitled to be saved from all loss and harm by a sale of the premises in said Kramer et al. v. The Farmers' and Mechanics' Bank of Steubenville et al. Dec. Term, 1846. deeds mentioned, as prayed for in his answer. It was, there- IN BANK, upon, ordered, adjudged, and decreed, that unless the said Doyle, within five days from the rising of the Court, should be indemnified against said judgments, and secured from all loss and harm in respect thereto, by the said Wells, Henry and Hanlin, or by some incumbrancer or incumbrancers of said premises, subsequent to said Doyle, that the said premises, in said mortgage deeds described, should be appraised and sold for that purpose. And it was further ordered, that the proceeds of said sale be applied, first, to the payment of the costs of the suit; second, to the payment of the judgments in favor of the trustees of the bank against Doyle; third, to discharge the liens of other mortgages and judgments, according to their priority, as ascertained by the master in his report; fourth, the residue, if any, to be brought into Court, to be disposed of as the Court should order. In pursuance of this decree, the property was sold. The foregoing is but a brief and imperfect abstract of a very voluminous record, but is believed to be sufficient for a correct understanding and disposition of the questions raised by the complainants in their bill of review. The complainants are a part of the judgment creditors, who, at their own request, were made defendants in the original case. The first error assigned is, that the Court decreed the mortgages made to the said Doyle to be good, subsisting and valid liens, on the said mortgaged estate, when it is apparent that the same were not good and valid liens on said estate as against the complainants. Several reasons are set forth under this assignment, which will be considered. And first, it is said the mortgages were not good and valid as against the complainants, because they were void for uncertainty, and it could not be ascertained how or when the same became forfeited, nor how the same could or would be satisfied. IN BANK. Dec. Term, 1846. Kramer et al. v. The Farmers' and Mechanics' Bank of Steubenville et al. I do not perceive that there was any difficulty in this respect. Wells, Henry & Co. had procured accommodations at the bank, and were anxious to procure further accommodation. Doyle had been security upon their paper, and he was willing further to go security for them provided he could have indemnity. He had a right to ask the indemnity, and Wells, Henry & Co. had a right to give it. It was done by way of mortgage; and although these mortgages were intended to cover subsequent as well as previous liabilities, they could not, on this account, be objectionable as between the parties. During the existence of these mortgages, had a third person recovered a judgment against Wells, Henry & Co., the lien of such judgment might, and probably would be preferred to the lien of the mortgages for liabilities subsequently incurred by Doyle. But these complainants are not in this situation. The liabilities of Doyle had been fixed before the rendition of their judgments. It is not perceived that there would be any difficulty in ascertaining when the conditions of the deeds were broken and the mortgage forfeited, nor as to the manner in which they could. be satisfied. Another reason assigned why the said mortgages are void as to complainants, is, that as to them, there was no sufficient or valid consideration passing to the grantors from the said Doyle, for the same, so far as the contemplated prospective liabilities of the said Doyle to the said Wells, Henry & Co. were concerned, for the said Doyle was in no way bound to indorse any paper for them; and so the same was and is void, for a total want of consideration. If Doyle had not indorsed the paper, or made himself security for Wells, Henry & Co., the mortgage would have been void for want of consideration, or, in other words, it would not have operated as an indemnity, for there would have been nothing against which any indemnity could have been required. It is true, too, that Doyle was under no legal obligation to indorse; but when he did indorse, and thereby made himself liable for Wells, Henry & Co., as was contemplated when the |