Page:Federal Reporter, 1st Series, Volume 10.djvu/868

 856 FBDEBAL REPOBTEB. �(Hubbard's) mortgage was good, and that Hubbard should not lose anyfching on it. Smith was the agent who made the contract on the part of the land-owners in New York, and was their general agent and representative in thia state, and while the plaintiff'a case does not rest on this recognition of his rights by the defendants, such rec- ognition confirma the construction put upon the contract-deed trans- action by the court, and shows what the understanding of the parties was. That construction is also conurmed by the allegations of the defendant land-ownera in their bill of complaint against Bellew in the atate court, where they allege, and the court finds aa one breach of the contract on the part of Bellew, that he had failed to give them a second mortgage on the mill forty to secure the contract with him. Of course, aa they had never conveyed the mill forty to Bellew as they agreed in the contract, it was not essential to their aecurity that Bel- lew should mortgage back to them ; but the allegation serves to show the understanding of the contract, and that understanding coniports with the letter and plain intent thereof, and the construction now put upon it by the court. �It is inaisted, also, by the defendants, that the contract between Hubbard and Bellew is void, as being within the atatute of frauds. But it ia evident that the statute of frauds has no application to the case. So far as the creation of any interest in land is concerned, the evidence is in writing, �I think there should be a deoree in favor of the plaintiff ; that he should be adjudged to have a lien upon the mill 40 acres for the amount of $6,500, with interest at 7 per cent, from the time of fin- ishing, say February 6, 1876; and that the premisea be sold as under a mortgage proper, to satisfy the amount of his said claim, with in- terest and costs of suit, giving the uaual time of redemption. ��� �