dissenting.
The plaintiff in error executed to Hamilton & Hardeman a mortgage to secure them against certain liabilities which they had incurred on his account prior to the date of the mortgage, and to indemnify them against loss for such acceptances as they might make for him thereafter. The mortgage bore date on the first day of June, 1849. The mortgage had been assigned to the intestate of the defendant in error.
This is a petition and rule nisi calling on the mortgagor to show cause why the mortgage should not be foreclosed; and the debts claimed to be entitled.to satisfaction from the mortgaged property, are certain drafts drawn by the mortgagor on the mortgagees and accepted by them, bearing date respectively, 31st Dec. 1851; June 3d, 1852 ; Jan. 10th, 1852 ; Jan, 13th, 1852; Jan. 27th, 1852; Feb. 12th, 1852; Feb. 21st, 1852; Feb. 28th, 1852.
The mortgagor showed for cause ten objections to the foreclosure. The ninth objection is that ‘the drafts were not given on account of any of the anticipated or future liabilities or indebtedness mentioned in the petition or rule nisi, and avers that there was no lien created by themnortgage by reason of said liability.
The tenth alleges that no part of the money claimed to be due was intended to be secured by the mortgage. The Court below overruled all the objections. The plaintiff in error excepted to its judgment and this Court affirms it.
I have the misfortune to dissent from the judgment of the majority. The plaintiff in error does not deny the execution *176of the drafts, and therefore he is not required to file the objection he makes under oath. He does not insist that the drafts, or any of them, as mortgage debts, have been paid in whole, or in part, so that an affidavit of that fact is not necessary. The judgment of the Court below, as understood here, was that, notwithstanding the objections filed and the issue made thereby, the defendant in error was entitled to his rule absolute without proof that the drafts or acceptances, were the debts secured by the mortgage.
The plea, or whatever it may be called, of the mortgagor certainly puts that matter in issue, and the mortgagees, or their assignee, like every other plaintiff, ought to be required to make out his or their case by proof. The mortgage was given for the purpose of securing the mortgagees for sums of money which they had theretofore paid, and which they might thereafter pay for and on account of the mortgagor in discharge or payment of debts and judgments against him, or which he had been or might be enabled to discharge by their acceptances, or other of their means, and to fully indemnify and save harmless the mortgagees from all losses from liabilities by them incurred by acceptances of drafts, checks, endorsements of notes, or by any other notes or means on his account, and from all losses which may happen or accrue from, or in the,purchase and sale of cotton, or by any other means where liabilities have been or may yet be incurred by the said mortgagees on account of the said mortgagor in extending aid and credit, or assistance to him in cotton or other trade and operations.
No debt due by mortgagor to mortgagees is described in the mortgage. It is vague and uncertain as to any specific debt or liability of mortgagor to mortgagees. The drafts all bear date more than two years after the execution of the mortgage, and it is not even averred in the rule nisi that they are the liabilities against the payment of which, it was intended to indemnify the mortgagees.
My opinion is that it cannot be presumed from the facts *177■stated and admitted in the pleadings, and from them we must judge as the case is presented here. I think therefore, that the judgment of the Court below ought to be reversed.