Page:Federal Reporter, 1st Series, Volume 10.djvu/863

 HUfiBABO t7. BELIiEW. 851 �second mortgage is to be as security, and to be conditioned for the faithful performance of this eontract on the part of the said party of the second part. Aiid the said parties of the flrst part, in consideration of the building, main- taining, and erection of the said mill, as aforesaid, covenants and agrees with the said party of the second part to sell and convey to him the following described real estate, to-wit," etc. �After the execution and delivery of the eontract, in November, 1875, Bellew takes it to Stephen Hubbard, shows him the eontract, and requests Hubbard to advance him money to build the mill. Hub- bard examines the eontract, reads it through, and on the strength of the above provision he agrees to advance money, and does in fact, during that same fall and winter, to-wit, in November and Decem- ber, 1875, and January and February, 1876, advance money and means to Bellew, to theaggregate in the amount of about $10,000, to build and complete the mill upon a 40 acres selected by Bellew. �It is claimed by the complainant that there was an agreement between Bellew and Smith, the agent, after Hubbard had begun to advance means to build the mill, that Bellew might mortgage for a larger sum than $6,500, and there Was proof taken to this efiect. But the plaintiff, on the hearing, waives all claim to any lien for more than the $6,600 and interest. �The question is whether he is eutitled to any lien on the mill and mill site for this amount. The mill was huilt during the fall of 1876 and winter of 1876-6, and the evidence shows it to have been worth $12,000. On February 6, 1876, after Hubbard had made the advances to build the mill, and after the mill was completed, he went to Bellew and asked him to give him security on the mill forty for the advances. Bellew said he would, and they had a deed made by Bellew and his wife to Hubbard of the mill forty which was, be- tween the parties, intended as a mortgage to securo Hubbard for the advances so made to build the mill. This was done without the knowledge of Smith, or of the land-owners whom he represented, and before they had made any conveyance of the land to Bellew, as pro- vided in the eontract. In fact, this conveyance has never been made. The deed to Hubbard by Bellew and wife is dated on February 6, 1876, expresses the consideration of $10,000, which was the amount it was agreed Hubbard had advanced, and was duly recorded as a deed in the proper office. It is in evidence that the agent, Smith, knew frotn time to time that Hubbard was advancing money to Bel- lew to. build the mill, and that after the deed by Bellewto Hubbard ��� �