It is quite frequently asserted or assumed that a mortgage is invalid unless supported by a consideration,65 but this position is, it is conceived, of doubtful correctness. Regarding a mortgage from the purely common law point of view, as a conveyance on condition subsequent, such a conveyance is perfectly valid without any consideration, as is a conveyance not on condition.66 Indeed the common law mortgage was fully recognized many years before the doctrine of consideration had been developed. Looking at a mortgage from the equitable point of view, as a mere security for the performance of an obligation, there does not seem any reason for the introduction of the doctrine of consideration, a doctrine which is properly applicable to executory

134 Ga. 828, 31 L. R. A. (N. S.) 332, 68 S. E. 590; Turpie v. Lowe, 114 Ind. 37, 15 N. E. 834; McDonald & Co. v. Kellogg, 30 Kan. 170, 2 Pac. 507; Henshaw v. Sumner, 23 Pick. (Mass.) 446; Dyson v. St. Paul Nat. Bank, 74 Minn. 439, 73 Am. St. Rep. 358, 77 N. W. 236; Crow v. Beardsley, 68 Mo. 435; Muchmore v. Budd, 53 N. J. L. 369, 22 Atl. 518; Hoffman v. Mackall, 5 Ohio St. 124, 64 Am. Dec. 637; Woodruff v. Robb, 19 Ohio 212; Ladd v. Johnson, 32 Ore. 195, 49 Pac. 756; Johnson's Appeal, 103 Pa. St. 373; Catlett v. Starr, 70 Tex. 485, 7 S. W. 844; McGregor v. Chase, 37 Vt. 225; Wyman v. Matthews, 53 Fed. 678; Ontario Bank v. Hurst, 103 Fed. 231, 43 C. C. A. 193.

65. See, e. g. Lackey v. Bor-uff, 152 Ind. 371, 53 N. E. 412; Duncan v. Miller, 64 Iowa, 223, 20 N. W. 161; Roberts v. Roberts, 176 Iowa, 610, 156 N. W. 399;

Fernald v. Highland Hall Co., 59 Kan. 534, 53 Pac. 861; Scrimser v. Southern Nat. Bank, 144 Ky. 781, 139 S. W. 951; Gate City Nat. Bank v. Elliott, - (Mo.) -, 181 S. W. 25; Forbes v. McCoy, 15 Neb. 632, 20 N. W. 17; Kansas Mfg. Co. v. Gandy, 11 Neb. 448, 38 Am. Rep. 370, 9 N. W. 569; Best v. Thiel, 79 N. Y. 15; First Nat. Bank of Hastings v. Lamont, 5 N. D. 393, 67 N. W. 145; Talley v. Buchanan, - (Tenn. Ch.) -, 46 S. W. 542; Empire State Surety Co. v. Ballou, 66 Wash. 76, 118 Pac. 923. In Thackaberry v. Johnson, 131 111. App. 463; Best v. Thiel, 79 N. Y. 15; Herron v. Stevenson, 209 Pa. 354, 102 Atl. 1049; Clymer v. Groff, 220 Pa. 580, 14 Ann. Cas. 256, 69 Atl. 1119, it was said that the fact that the mortgage was under seal dispensed with proof of consideration.

66. Ante, Sec. 438.

Even though a consideration is not necessary to the validity of the mortgage itself, the question whether the obligation secured is supported by a consideration may be of primary importance, since a mortgage is, in the view at least of a court of equity, a nullity, except in so far as it secures a valid obligation, and a contractual obligation, not under seal, must ordinarily be supported by a consideration. And so it has been decided in several cases that a mortgage was

66a. Bray v. Comer, 82 Ala. 183, 1 So. 77; Frey v. Clifford, 44 Cal. 335; Usina v. Wilder, 58 Ga. 178; McLaughlin v. Ward, 77 Ind. 383; Hewitt v. Powers, 84 Ind. 295; Rea v. Wilson, 112 Iowa, 517, 84 N. W. 539; Brooks v. Owen, 112 Mo. 251, 19 S. W. 723, 20 S. W. 492; Laubenheimer v. McDermott, 5 Mont. 512, 6 Pac. 344; Chaffee v. Atlas Lumbar Co., 43 Neb. 224, 47 Am. St. Rep. 753, 61 N. W. 637; Longfellow v. Barnard, 58 Neb. 612, 76 Am. St. Rep. 117, 79 N. W. 255, 59 Neb. 455, 81 N. W. 307; Weber v. Barrett, 125 N. Y. 18; Lehrenkrauss v. Bonnell, 199 N. Y. 240, 92 N. E. 637; Sargent v. Cooley, 12 N. D. 1, 94 N. W. 576; Reeves & Co. v. Dyer, 52 Okla. 750, 153 Pac. 850; Moore v. Fuller, 6 Ore. 272, 25 Am. Rep. 524. It seems clear, on principle, that it is immaterial, in this connection, whether the pre-existing debt is that of the mortgagor or a third person, and that such is the case is apparently recognized in Buck v. Axt, 85 Ind. 512; Per-kins v. Trinity Realty Co., 69 N. J. Eq. 723, 61 Atl. 607, 71 N. J. Eq. 304, 71 Atl. 1135; Lee v. Kirk-patrick, 14 N. J. Eq. 264; National City Bank of Chicago v. Wagner, 216 Fed. 473, 132 C. C. A. 533. But a contrary view has occasionally been asserted. B. C. Bynum Mercantile Co. v. First Nat Bank of Anniston, 187 Ala. 281, 65 So. 815; Bell v. Bell, 133 Mo. App. 570, 113 S. W. 667; Kansas Mfg. Co. v. Gandy, 11 Neb. 448, 38 Am. Rep. 370, 9 N. W. 569. And see Ray v. Hollenbeck, 42 Fed. 381. 67. Post, Sec. 607(a), note 75.

3 R. P.- 9 invalid, not because it was not supported by a consideration, but because the obligation secured by it was not so supported.68 Moreover, even apart from the necessity of a consideration to support a personal obligation for the debt secured, it is the settled doctrine at the present day that a mortgage purporting to secure the payment of money will be enforced only to the extent of the sum equitably due, without reference to the amount named in the mortgage instrument, or bond or note accompanying it.69 And this appears to be, frequently if not ordinarily, what is meant by the assertion, either in express terms, or by implication, of the necessity of a consideration to support a mortgage, that is, that it is effective and enforcible as a lien only if, and in so far as, it secures a valid claim.70

68. State Land Co. v. Mitchell, 162 Ala. 469, 50 So. 117 (semble); Chesser v. Chesser, 67 Fla. 6, 64 So. 357; Hall v. Davis, 73 Ga. 101; Scott v. Magloughlin, 133 111. 33, 24 N. E. 1030; Conwell v. Clifford, 45 Ind. 392; Adams v. Laugel, 144 Ind. 608, 42 N. E. 1017; Cotton v. Graham, 84 Ky. 672, 2 S. W. 647; Hannan v. Han-nan, 123 Mass. 441; Saunders v. Dunn, 175 Mass. 164, 55 N. E. 893; Anderson v. Lee, 73 Minn. 397, 76 N. W. 24; Hughes v. Thweatt, 57 Miss. 376; Bradshaw v. Farns-worth, 65 W. Va. 28, 63 S. E. 755. See Brooks v. Owen, 112 Mo. 251, 19 S. W. 723, 20 S. W. 492; Cawley v. Kelley, 60 Wis. 315, 19 N. W. 65.

69. Rue v. Dole, 107 111. 275; Bacon v. National German-American Bank of St. Paul, 191 111. 205, 60 N. E. 846; Schaeppi v. Glade, 195 111. 62, 62 N. E. 874; Colt v. McConnell, 116 Ind. 249, 19 N. E. 106; Miexsell v. Walton, 49

Kan. 255, 30 Pac. 410; Fisher v. Meister, 24 Mich. 447; Laylin v. Knox, 41 Mich. 40, 1 N. W. 913; Cady v. Burgess, 144 Mich. 523, 108 N. W. 414; Donovan v. Boeck, 217 Mo. 70, 116 S. W. 543; Heller v. Groves, - (N. J. Ch.) -, 8 Atl. 652; Briggs v. Langford, 107 N. Y. 680, 14 N. E. 502; Bush v. Roberts, 57 Ore. 169, 110 Pac. 790; McAteer v. McAteer, 31 S. C. 313, 9 S. E. 966; Wade v. Donau Brewing Co., 10 Wash. 284, 38 Pac. 1009; McCourt v. Peppard, 126 Wis. 326, 105 N. W. 809.

70. See More v. Calkins, 95 Cal. 435, 29 Am. St. Rep. 128, 30 Pac. 583; Colt v. McConnell, 116 Ind. 249, 19 N. E. 106; Rice v. Rice, 101 Kan. 20, 165 Pac. 799; Bigelow v. Bigelow, 93 Me. 439, 45 Atl. 513; Saunders v. Dunn, 175 Mass. 164, 55 N. E. 893; Page v. Franklin, 214 Mass. 552, 101 N. E. 1084; Fisher v. Meister, 24 Mich. 447; Welbon v. Webster, 89 Minn. 177, 94 N. W. 550; Kuhne previously indicated,79a when the performance of a contract to support another is secured on Land, it is by force of a stipulation, either in express terms or implied from circumstances, in connection with a conveyance by the person to be supported to the person undertaking to furnish the support, to which the courts give effect by rescinding the conveyance on failure to furnish the support. Occasionally, however, a mortgage is made in express terms securing the performance of the mortgagor's contract to support the mortgagee, and the validity of such a mortgage appears to be fully recognized.79b The mortgagor under a mortgage to secure support, who has failed to furnish support as agreed, will usually, it seems, be relieved from an absolute forfeiture for such failure, on paying adequate damages.79c The right of redemption may, however, be extinguished, as in the case of other mortgages, by foreclosure,79d and for that purpose, in case of necessity, the money value of the obligation assumed may be approximately estimated or computed.79e

Applying the consideration last above suggested, occasional decisions to the effect that one may make a gift by executing a mortgage in favor of the donee for a named amount, which may be enforced by the latter,71 appear to be open to serious question, except in so far, at least, as a personal obligation under seal for that amount is also given. There is in such case merely a mortgage purporting to secure a debt, which debt is nonexistent. And it is immaterial that the mortgagor, at the time of executing the mortgage, also executes a note or notes for the amount named in the mortgage, since a note made as a gift is not binding on the maker.72 According to common law standards, it would seem that a sealed obligation executed by way of gift from the maker to the obligee would be valid, in which case a mortgage securing such obligation might also be valid and effective.