Page:Federal Reporter, 1st Series, Volume 10.djvu/866

 854 PEDKBAL REPORTER. �contract, to give hiin a deed, and I think, bo far as Hubbard's riglita are concerned, what ought then to have been doue tfae court will con- sider as having been done. It is clear that if they had given Bellew a deed, and then he had given a deed, as he did do, to Hubbard, to secure his advances, it would have been a first lien on the premises, the same as though Bellew had given a mortgage in form. But Bel- lew having earned the right to a conveyance, and being entitled to one because of having built the mill, he had an equitable interest in the premises, and was in equity the substantial owner, subjeot of course to his obligation to give to the legal owners a second mortgage to secure the due performance of the entire contract on his part. �Hubbard 's rights in the premises are not snbject to those of Bellew, nor was he in any way concluded by the judgment against Bellew. On the contrary. whatever right he bas is not only superior to those of Bellew, but to those of the defendant land-owners as well. This is the natural and inevitable meaniug of the contract. It was clearly con- templated by the parties, and all their acts show it, that it was expected that Bellew would have to borrowmoney to enable him to build the mill. It was for the mutual benefit of both parties to the written contract that a mill should be built. This was no doubt the primary meaus relied upon by both to enable Bellew to pay for the lands and the timber, and both parties were mutually interested, not only in the building of the mill but in the selection of the best location. It is the first and one of the primary stipulations in the contract, on the part of Bellew, that he will build a mill worth at least §9,000, and it is in consider- ation of this that the other parties agree to sell him the land and timber; and, evidently, to enable him to build the mill, this provision is found in the contract that he shall be entitled to a deed and clear title to that forty, to enable him to mortgage it to secure an outside or third party, to secure advances; and the stipulation that, after so mortgaging it to such outside party for $6,500, Bellew should give back a second mortgage to the original owners of the land, shows that their interests in the mill and mill site were to be subject and secondary to those of the outside party who might be induced to step in and furnish money to build the mill. And this is a sufficient answer to the position taken by defendants that by modification of the contract in regard to the location of the mill an obligation was imposed upon Bellew to pay for the stumpage with the mill forty, and, besides the stumpage, to pay five dollars per acre for the two forties connected with the one on which the mill was located. ��� �