Page:Federal Reporter, 1st Series, Volume 5.djvu/16

 à FEDERAL REFOBTEB. �due from said Irwin to himi which promise they bave not kept. In the action pending against Ilawkett and Eobinson, aforegaid, the plaintiff bas included the last two items, amount- ing to 1171.67. The plaintiff claims that $3,882.68 of the indebtedness which Hawkett and Eobinson assumed remains unpaid, and that there is a lien upon the property in favor of the person to whom it is now. due. ' �. On Mareh 17, 1879, Hawkett sold bis interest in the prem- ices to Eobinson ; and the latter, in bis answer, denies that Irwin had any interest in the mine, or sold or delivered any tp himself or Hawkett, and alleges that the several promissory Dtotes giyen on account of the debts assumed by himself and Hawkett were given and received as payments thereof, and that the original debts were thereby extinguisbed, and the liens, if any, discharged; that the debt of Green was not paid because he refused and still refuses to relinquish a claim to one of the water rights in question, as he was bouud to do, The plaintiff also alleges that the defendant Jesse Eobin- son, the father of E. C. Eobinson, was a secret partner in this transaction with Hawkett and his son, but this allegation is denied by the answer of eaeh of the Eobinsons. On May 13, 1879, E. 0. Eobinson mortgaged an undivided two-thirda of the property to the defendants Benjamin Haymond and C. Magruder, to seoure the payment of his note to them for $2,295; and on May 14, 1879, mortgaged the same interest to Jesse Eobinson to secure the payment of his note to him for 14,975. �The plaintiff alleges that the $3,882.68 — the unpaid por- tion of the indebtedness aforesaid — is a lien upon the prop- erty prior to the lien of said mortgages, both on account of the terms of the contract of sale of July 26, 1878, and as a "vendor's lien for the purchasemoney;" and that the alleged mortgage to Jesse Eobinson is fraudulent and void as against said liens, for want of consideration, and was made to cheat and defraud the plaintiff ont of bis just claims against the defendants Hawkett and Eobinson ; and that each of said mort- gagees, at and bef ore the taking of such mortgages, bad aotual notice of the agreement of July 26, 1878, and that each of ����