Page:Federal Reporter, 1st Series, Volume 1.djvu/304

 2yô FEDERAL REPORTER, �tbe Oliio river, known as the "Brooks land," the "Puller tract," and the "Carson. land," immediately adjoining each other, and that the Brooks land and the Carson land had been originally parts of one and the same tract, known as the Brooks tract; that these three parcels had been considered and treated by Hart as being a single tract, under the name of the "Brooks land," or the land bought of the Brooks heirs; that prior to the execution of the mortgage the parcel niarked on the plat annexed to the bill as the "Brooks land," contain- ing 263 acres, and the Fuller tract, 21 acres, had been levied upon by the creditors of Hart, under au execution, and that the levy was in full force at the time the mortgage was exe- cuted ; that it was then well known, both to Hart and to Hall and Allen, the mortgagees, that almost, if not the whole, of said two parcels would be required to satisfy sach levy, and that subsequently they were in fact sold in satisfaction thereof, and complainants became the owners of the same by assign- ment from the purchasers. �The bill then sets forth the proper description of the lands owned by Hart at the date of the execution of the mortgage, by metes and bounds; that, allowing for accretions on the river front and inacouracies in former surveys, there remains after the sale upon execution, subjeot to this mortgage, about 100 acres. The bill further alleges that, at the time of the execution of the mortgage, the words "lands conveyed to me by Brooks' heirs," were understood and intended by the par- ties to include and embrace the original Brooks tract, and the mortgage was accepted by Hall and Allen under the be- lief and impression that the said words did so embrace and include ail lands owned by said Hart within the boundary hereinbefore set out, and it was the intention and meaning of the parties thereto to give Hall and Allen a lien upon 100 acres of land within the said boundary, without reference to the subdivisions as shown by the map, and if such mortgage does not give such lien to Hall and Allen, and to the com- plainants, as their assignees, it is because of a mistake or inadvertence in reducing the same to writing, and it does not correctly embrace and express the intention and understand- ��� �