(dissenting.) This action was brought to foreclose a mortgage executed by defendant to plaintiff. The latter had made and delivered to one Charles Parsons his bond for the sum of $1,500, secured by a mortgage upon real estate, which, upon October 29, 1884, he sold to the defendant, who paid $1,060 in cash, and assumed the said Parsons bond and mortgage in payment of the purchase price of said premises. On December 10, 1889, without any new or other consideration, defendant executed the bond and mortgage set out in the complaint to secure the performance of his obligation to pay the Parsons bond and mortgage, and to secure plaintiff and save him harmless of and from all liability upon or by virtue of the said last-named mortgage, the payment of which has been assumed as above stated by the defendant. It is urged by the appellant that the bond and mortgage upon which this action is brought were given without any legal consideration, and hence that the court below erred in directing judgment for the plaintiff; that by and under the provisions of the deed executed by plaintiff and accepted by defendant the. latter assumed the payment of the Parsons bond and mortgage, and became legally liable to pay the same as principal debtor. The contract between the parties being complete in itself, plaintiff could not call as surety upon defendant afterwards for collateral security for the performance of his agreement, and any such security given without a new and adequate consideration was nudum pactum as long as the original contract remained in full force, unaffected by the new agreement. I am unable to concur in this position of defendant’s, believing that the court below made the proper disposition of the case. The bond and mortgage upon which *1030this action was brought were made to secure a concededly valid obligation existing in favor of plaintiff and against defendant when the mortgage was executed. This obligation was a sufficient consideration to sustain the bond and mortgage in an action brought by the mortgagee against the mortgagor. Jones, Mortg. § 458; Havens v. Willis, 17 Wkly. Dig. 372; Hiscock v. Phelps, 49 N. Y. 97; Buck v. Axt, 85 Ind. 512; Knapp v. McGowan, 96 N. Y. 75-86; Young v. Guy, 23 Hun, 1, 2, 87 N. Y. 457; Hewitt v. Powers, 84 Ind. 296; Cooley v. Hobart, 8 Iowa, 358; Wright v. Bundy, 11 Ind. 400-409; Work v. Brayton, 5 Ind. 398; Youngs v. Wilson, 27 N. Y. 351; Louthain v. Miller, 85 Ind. 161. This case is not like that of Vanderbilt v. Schreyer, 91 N. Y. 392, and kindred cases, to which we are referred by the learned counsel for appellant. In the case cited, the defendant, being by his contract legally bound to assign a bond and mortgage without a guaranty, in payment of an installment due on a building contract, and the plaintiff refusing to accept such assignment without the guaranty, executed such guaranty with the assignment, without being under any legal liability so to do, and without any new consideration. The defendant in the case cited, therefore, took upon himself a new and distinct obligation without any new consideration. The cases and authorities referred to by Judge Huger in Vanderbilt v. Schreyer, supra, are all to the same effect. The distinction between such cases and that under consideration is clear. Here the bond and mortgage does not hold the defendant to any obligation he had not previously incurred by the acceptance of the deed from plaintiff, being given merely to secure such existing liability. Prior to the execution of the instruments in question, defendant was legally bound to pay the Parsons bond and mortgage. He was under a liability to plaintiff to do so, and the mortgage in question was given to secure to the plaintiff the performance of said legal obligation. As held in Knapp v. McGowan, 96 N. Y. 86, a debtor may mortgage his property to secure existing claims. The difference between this case and the authorities relied upon by appellant is that the mortgage in suit was given to secure a conceded liability, while in the authorities so cited by defendant a new and distinct liability was assumed without any new consideration. I have examined the other cases cited by defendant, but do not deem it necessary to discuss them. They do not support her contention. The former ineffectual action brought by plaintiff for a specific performance is not a bar to the present one. The former and present actions are not inconsistent, each being brought to enforce the contract. Also, as an execution was issued and returned unsatisfied on the judgment obtained in the former action, the provisions of section 1630, Civil Code, do not prevent the plaintiff’s recovery. I have examined the several exceptions taken by the defendant, mentioned in his brief. I do not think they need discussion, or that either of them requires a reversal of the judgment. It seems to me, on the conceded or clearly-established facts of the case, plaintiff was en*1031titled to the judgment of foreclosure directed by the learned justice, and, therefore, that the judgment should be affirmed, costs. trial with