43. Joseph Smith Co. v. Mc-Guinness, 14 R. I. 59; Spooner v. Sandilands, 1 Younge & C. 390; Cradock v. Scottish Provident Institution, 63 Law J. Ch. 15; Abbott v. Stratten, 3 Jones & L. 603. A power to sell land and apply the proceeds on a debt has also been regarded as creating such a lien. American Loan & Trust Co. v. Billings, 58 Minn. 187; Pember ton v. Simmons, 100 N. C. 316, 6 S. E. 122.

44. Brown v. Brown, 103 Ind. 23, 2 N. E. 233; Johnson v. Johnson, 40 Md. 189; Kretzer v. Lorsh-baugh, 117 Md. 562, 83 Atl. 1027 (scmble); Pinch v. Anthony, 8 Allen (Mass.) 536; Connolly v. Bouck, 174 Fed. 312, 98 C. C. A. 184.

45. Ross v. Perry, 105 Ala. 533, 16 So. 915.

46. Hays v. Hall, 4 Port. (Ala.) S74, 30 Am. Dec. 530; Tumlin v.

Tumlin, 195 Ala. 457, 70 So. 254; Jones v. Lapham, 15 Kan. 540; Gamble v. Ross, 88 Mich. 315, 50 N. W. 379; Hackett v. Watts, 138 Mo. 502, 40 S. W. 113; Burrows v. Hovland, 40 Neb. 464, 58 N. W. 947; Lovejoy v. Chapman, 23 Ore. 571, 32 Pac. 687; Russell's Appeal, 15 Pa. St. 319. 47. Burgh v. Francis, Finch. 28; Love v. Sierra Nevada Lake Water & Min. Co., 32 Cal. 639, 91 Am. Dec. 602; Peers v. McLaughlin, 88 Cal. 294, 22 Am. St. Rep. 306, 26 Pac. 119; Price v. McDonald, 1 Md. 414, 54 Am. Dec. 657; McQuie v. Peay, 58 Mo. 56; Gale v. Morris, 30 N. J. Eq. 285; Sprague v. Cochran, 144 N. Y. 104, 38 N. E. 1000; Bank of Muskingum v. Carpenter's Adm'rs, 7 Ohio, 21, 28 Am. Dec. 616; Delaire v. Keenan, 3 Desaus. (S. C.) 74, 4 Am. Dec. 604.

An agreement for value to give a mortgage on land, to secure a particular debt, has been regarded in equity as creating a lien on the land, on the principle, it has been said, that equity regards that as done which ought to have been done,55 in other words, that since equity recognizes an obligation to give the mortgage as agreed, it will regard the mortgage as already-given. And on a like theory a mortgage on property to be acquired in the future is given effect in equity, although ordinarily ineffectual as a mortgage strictly legal in character.56

48. Peckham v. Haddock, 36 I11. 38; Sanders v. McDonald, 63 Md. 503; McClurg v. Phillips, 49 Mo. 315; Bullock v. Whipp, 15 R. I. 195, 2 Atl. 309.

49. Margarum v. J. S. Christie Orange Co., 37 Fla 165, 19 So. 637, Moore v. Thomas, 1 Oreg. 201; Bryce v. Massey, 35 S. C. 127, 14 S. E. 768; Morrill v. Morrill, 53 Vt. 74, 38 Am. Rep. 659.

50. Ante, Sec. 196.

51. New Vienna Bank v. Johnson, 47 Ohio St. 306, 8 L. R. A. 614, 24 N. E. 503; Stark v. Kirk-ley, 129 Mo. App. 353, 108 S. W. C25.

52. Gale v. Morris, 29 N. J. Eq. 222. In Dietrich v. Hutchinson, 81 Vt. 160, 69 Atl. 661, it was held that when a mortgage was partially invalid because the husband of the owner of the land, though he signed the instrument, was not named as a party thereto, it was good as an equitable mortgage on the husband's in terest, he having in effect indicated in writing his intention to secure the debt thereby.

53. McQuie v. Peay, 58 Mo. 56; Dulaney v. Willis, 95 Va. 606, 63 Am. St. Rep. 815, 29 S. E. 324.

54. Love v. Sierra Nevada Lake Water & Min. Co., 32 Cal. 639, 91 Am. Dec. 602; Peers v. McLaughlin, 88 Cal. 294, 22 Am. St. Rep. 306, 26 Pac. 119; Bundy v. Ophir, Iron Co., 38 Ohio St. 300. Compare Brown v. Farmers' Supply Depot Co., 23 Ore. 541, 32 Pac. 548.

The theory of a lien thus arising, in the view of a court of equity, as a result of an agreement that a lien shall be created, or shall exist, appears to be that the court regards such an agreement as a valid contract, to which it will give effect, on principles anal-agous to those underlying the doctrine of specific performance, as against not only the promisor himself, but also as against third persons acquiring an interest in the land as volunteers or with notice of the agreement.57 That the lien is based on contract58 is necessarily involved in dicta or decisions that the transaction must be supported by a valuable consideration,59 as

55. Richardson v. Wren, 11 Ariz. 395, 16 L. R. A. (N. S.) 190, 95 Pac. 124; King v. Williams, 66 Ark. 333, 50 S. W. 695; Remington v. Higgins, 54 Cal. 620; Woarms v. Hammond, 5 App. Cas. (D. C.) 338; Hamilton v. Hamilton, 162 Ind. 430, 70 N. E. 535; Hughes v. Mullaney, 92 Minn. 485, 100 N. W. 217; Carter v. Hol-man, 60 Mo. 498; In re Petition of Howe, 1 Paige (N. Y.) 125, 19 Am. Dec. 395; Sprague v. Cochran, 144 N. Y. 104, 38 N. E. 1000; Carter v. Sapulpa & I. R. Co., 49 Okla. 471, 153 Pac. 853; Smith v. Patten, 12 W. Va. 541; Bridgeport Electric & Ice Co. v. Meader, 18 C. C. A. 451, 72 Fed. 115; Baltimore & Ohio R. Co. v. Berkley Springs & P. R. Co., 168 Fed. 770.

56. See 3 Pomeroy, Eq. Jur. Sec.

1236, and ante, Sec. 602.

57. See Ketchum v. St. Louis, 101 U. S. 306, 25 L. Ed. 999; Taliaferro v. Barnett, 37 Ark. 511; Jones v. Lapham, 15 Kan. 540; Punch v. Anthony, 8 Allen (Mass.) 536; Martin v. Bowen, 51 N. J. Eq. 452, 26 Atl. 823; Lake v. Doud, 10 Ohio, 415; De Arus-mant v. De Lagerty, 8 Lea (Tenn.) 188; Cox v. Romine, 9 Gratt. (Va.) 27.

58. That it is so based, see In re Lucan, 45 Ch. D. 470; and the remarks thereon in 7 Law Quart. Rev. 103; also Fisher, Mortgages (6th Ed.) Sec.Sec. 24-27.

59. See In re Lucan, 45 Ch. D. 470; Tailby v. Official Receiver. 13 App. Cas. at 546, 549, per Lord Macnaghten; Eaton v. Patterson, 2 Stew. & P. 9; Patrick v. Morwell as in decisions that it must be evidenced by an instrument in writing which satisfies the fourth section of the Statute of Frauds.60 It would seem to follow that, except in jurisdictions where a past consideration is effectual to support a contract, such an instrument by which it is sought to secure an indebtedness will not be given effect as an equitable lien or mortgage unless the indebtedness is created at the time of the delivery of the instrument, or some other valuable consideration passes at that time. The cases however make no suggestion to that effect, and presumably such a lien has occasionally been recognized as valid and effective although created merely to secure a past indebtedness without any new consideration.