The opinion of the court was delivered by

As against Abial C., William B. holds a valid and equitable mortgage to secure a lona-fide debt. He holds the same against the orators, unless they are entitled to precede him-by reason of an equitable right as against him.

So far as consideration, grant, and record are concerned, William B. is prior in legal right. The orators must therefore establish the ground of equity upon which they claim to stand in advance of William B. That ground is, that they will suffer damage by reason of the wrongful conduct towards them by William B., if ho is allowed to stand on the legal effect of his mortgage.

It is conceded that he had a right to take the mortgage and leave it for record as he did; but it is claimed that he ought to have told orators of the fact at the time their mortgage was presented to him with the request that he would carry it to the town clerk’s office, and that by reason of his not doing so, they have lost means and opportunity to get indemnity and pay on their debt against Abial 0.

That debt had already accrued and was existing. It had not been induced by any thing that had taken place, represented, or held out, in respect to a mortgage by William B. or Abial 0.

In this respect the orators and William B. stood on the same footing. His debt had already accrued and was existing, without regard to Abial O.’s liability to the orators, or to anything that took place between the parties as to the mortgages in question. Standing thus on equal footing with the orators in respect to debt against Abial C., and having equal right with them to have security by mortgage, was William B. at the time he di*72rected his mortgage to be recorded, under obligation to let the orators’ mortgage go on record before his ? It is plain to'us from the evidence that he had been openly and frankly endeavoring with the orators to have equal security with them by way of mortgage from Abial C. down to the time when the orators caused the mortgage to be made to them alone. William B. had done nothing to lead orators to suppose that he had abandoned his wish and purpose to share in the security which Abial might be able to make by way of mortgage, and when the mortgage to orators was handed to William B. to leave at the town clerk’s office, it is difficult for us to see how or why the orators, from anything that had passed between the parties, should have supposed that he would yield the precedence to them. When they refused to give him equality with them as he had proposed and urged down to the last moment, it would seem to be a strong draft on his good nature, that they should require him to let them have the lead when he had as good a right to load them as they to lead him.

The value of the real estate subject to and embraced in the mortgages is no element in this case, for the orators were, conversant with it, and had their own knowledge and judgment as the ground of their action. Indeed, it is not claimed that they were misled in this respect.

In another respect we are not able to find established' by the evidence an essential element of the right claimed as against William B.— viz: that the orators have suffered loss attributable to the not telling them by William B. of his mortgage at the time theirs was handed to him. It is left conjectural whether they would or could have taken any effectual steps to get indemnity or means of satisfaction upon their debt if they had thus been told of William B’s mortgage. His mortgage is to be assumed as valid and effectual with reference to .this element of the orators’ ground of equitable right, and that whatever means could be available to the orators, was property outside of the mortgage, which they could and would have fastened upon if they had been told of the mortgage of William B. at the time theirs was handed to him. As the burden is on the orators of establishing this ground, it is sufficient to say that the evidence comes short of so doing.

*73It is needless for any useful purpose, to set forth an analysis and discussion of the evidence — we merely indicate results as to the material points necessary to be established by the orators.

Decree is reversed as to William B., and cause remanded, with mandate that the bill be dismissed as to him, with costs, and that a decree of foreclosure be properly perfected against the other defendant.