Page:Federal Reporter, 1st Series, Volume 2.djvu/755

 748 FEDERAL REPORTER. �$5,000 worth of lumber should be made at any one tiine, and the indebtedness at no time during said year to exceed said sum of $5,000. To secure the payment of ail bills or accounts for lumber ordered and delivered under this arrangement the mortgage sued on was executed. Numerous lots of lumber were ordered and furnished during the year covered by the mortgage, and payments were made on account, from time to time, but at the end of the year there was a balance due the plaintiffs of considerably more than $5,000. No settle- ment was made at the end of the year, but the account was continued through three additional years, and up to July 13, 1873, when the mortgagor died, being then indebted to plain- tiffs, on the account, in the sum of $17,832.63. During the period covered by these transactions lumber was ordered by said KuUak, and furnished by plaintiffs, amounting in the aggregate to over $190,000, and payments thereon were made, from time to time, by Kullak, aggregating over $172,- 000. The parties frequently disoussed the state of the account after the expiration of the year covered by the mort- gage, and Kullak often said he considered the mortgage as security for $5,000 of his indebtedness, but no formai settle- ment was ever made, nor was any specifie application of the payments to any particular portion of the account ever directed by Kullak or made by plaintiffs. �The plaintiffs have proved their whole claim against the estate of Kullak in the probate court of Shawnee eounty, Kansas, and the same has been allowed; no proof that the eame, or any part thereof, was secured by mortgage, being made in that court. It appears, from the agreement of parties on file, that the whole amount of the plaintiffs' claim against said estate, as proved and allowed in the probate court, was $19,700.44, including the account in eontroversy here, and that the plaintiffs have received from the adminis- trator two dividends upon the whole sum, amounting to $5,319.11. My conclusions are as follows: ■ 1. It is no objection to the validity of the mortgage that it -was given to secure future advances, no present indebtedness subsisting at the time of its execution, Conrad v. Atlantic ����