TACKING. In English Law. The union of securities given at different times, so as to prevent any intermediate purchaser's claim ing title to redeem or otherwise discharge one lien which is prior, without redeeming or dis charging other liens also which are subse quent, to his own title. Jeremy, Eq. Jur. 188; 1 Story, Eq. Jur. § 412.
It is an established doctrine in the English chancery that a bona fide purchaser without any notice of, a defect in his title at the time of the purchase may lawfully buy any mort gage, or incumbrance, and if he can defend by those at law his adversary shall have no help in equity to set those incumbrances aside, for equity will not disarm such a pur chaser. And as mortgagees are considered in equity as purchasers pro tanto, the same doctrine has extended to them, and a mortga gee who has advanced his money without no tice of any prior incumbrance may, by getting an assignment of a statute, judgment, or re cognizance, protect himself from any incum brance subsequent to such statute, judgment, or recognizance, though prior to his mortgage; that is, he will be allowed to tack or unite his mortgage to such old security, and will by that means be entitled to recover all mon eys for which such security was given, to gether with the money due on his mortgage, before the prior mortgagees are entitled to recover anything; 2 Cruise, Dig. t. 15, c. 5, s. 27; 1 Vern. 188. The source and origin of the English doctrine is the case of Marsh v. Lee, 2 Ventr. 337; 1 Ch. Cas. 162; 1 Wh. & T. L. C. Eq. 611, notes. This case and the doctrine founded upon it has been the sub ject of severe criticism; Langd. Eq. P1..191. Lord Ch. J. Holt is said to have been one of the first to benefit by the right of tacking; see Holt v. Mill, 2 Vern. 279.
Tacking was abolished by sec. 7 of the Vendor and Purchaser Act, Stat. 37 & 38 Vict. c. 78, but that section is repealed by sec. 129 of the Land Title and Trausfer Act of 38 & 39 Vict. c. 87; Moz. & W. • See i Pingr. Mortg. § 477.
In England a mortgagee who holds several distinct mortgages under the same inortgagiir, redeemable, not by express contract, but only by virtue of the equity of redemption, may, within certain limits and against certain per sons, consolidate them, that is, treat them as one, and decline to be redeemed as to any, unless he is redeemed as to all ; 6 App. Cas.
698. See Brett's L. Cas. Mod. Eq. 216. It is there termed consolidation of mortgages, and the principle is laid down that the courts lean against any extension of the doctrine; 6 App. Cas. 698, which is cited as the lead
ing case, and as practically overruling L. R. 4 Eq. 537, which was overruled in 14 Ch. D.
The high-water mark of the doctrine is said to be represented by Vint v. Padget, where it was held that if mortgages of different lands to secure different debts are made to, or come into the hands of, the same person, the mort gagee cannot redeem either without redeem ing both, or he may enforce the payment of the amount of both debts out of the land cov ered by either; and this is true though he bought the mortgages with notice of an out standing second mortgage; 2 De G. & J. 611. This case is said to have been cited 'hut not approved in  App. Cas. 187, affirming  1 Ch. 51, which affirmed  2 Ch. 328, where it was held that when the owner of different properties mortgages them to dif ferent persons, and the mortgages afterward become united under one title, the holder of the mortgages has a right to refuse to be re deemed as to one without payment of all, not only as against the mortgagor, but also as against a person in whom the equities of.re demption of all.the properties have been vest ed by one deed, whether from the mortgagor or mesne assignee, although the assignment is made before the mortgages become united in title.
In American Law. This doctrine is incon sistent with the laws of the several states, which require ,the recording of mortgages; and does not ehist to any extent ; Peabody v. Patten, 2 Pick. (Mass.) 517; Brayee v. Bank, 14 Ohio 318; Anderson v. Neff, 11 S. & R. (Pa.) 208; Dyer v. Graves, 37 Vt. 375; Par kist v. Alexander, 1 Johns. ch. (N. Y.) 399 ; Bisph. Eq. § 159. A rule apparently anal ogous may, however, be found in those cases where a mortgage is given to secure future advances, and where the mortgagee is allow ed to recover sums subsequently advanced, as against a mesa mortgage ; Bisph. Eq. § 159, where the cases are collected; but the future advances to be protected must be without no tice of the intervening incumbrance; id.; Shirras v. Caig, 7 Ora. (U. S.) 45, 3 L. Ed. 260; unless the advances are made under a binding agreement; Crane v. Deming, 71 Conn. 387; Appeal of Moroney, 24 Pa. 372; Farnum v. Burnett, 21 N. J. Eq. 87 ; and the recording of the latter is a sufficient notice ; Spader v. Lawler, 17 Ohio 371, 49 Am. Dec. 461; Shirras v. Caig, 7 Cra. (U. S.) 45.