Page:Federal Reporter, 1st Series, Volume 5.djvu/332

 ;J20 FEDERAL REPORTER. �lute in form, but, as set forth in said agreement of August 18> 1876, to be held by him as an additional security for the payment of the note aforesaid, and in the manner and for the purposes mentioned in the agreement of Auguat 19, 1874, which agreement was not to be thereby annulled or set aside except so far as the latter might conflict with the former, but the two agreements were "to be taken and construed to- gether." �In April, 1877, Goldsmith made a conveyance of ail the property which he had conveyed to Hewett, as aforesaid, to the defendant Teal, and gave him possession thereof. �On July 6, 1877, no part of said principal having been paid, nor any of the interest arising thereon àfter January 21, 1877, "Hewett demanded from the defendant the possession of ail said lands in pursuance of the provisions of said oon- tracts," but the latter refused to surrender "any part" of the same, and held possession thereof until November 30, 1878, and received the rents and profits therefrom du ring said pe- riod. �Ail the lands aforesaid have been sold either at private or judicial sale, and the proceeds applied upon the plaintiff's debt, but there is still due thereon from said Goldsmith over f 50,000, and since April, 1877, he bas not had any other property out of which any part thereof oould be made. �Upon the argument of the demurrer it was finally admit- ted by counsel for the defendant that the plaintiflf was en- titled to the possession of the property from and after the default was made in the payment of said note — January 21, 1877 — provided there was a suffieient demand therefor, and to recover in this action such damages as he may have sus- tained by reason of the defendant's refusai to surrender the same. But it is contended that the demand, being for the whole property, while the conveyance by Goldsmith to Hew- ett, except as to the south half of lots .2 and 7, in block 38, aforesaid, only included an undivided half thereof, was too large and therefore insufficient ; citing Hodgeboom v. Hall, 24 Wend. 148, and Bradstreet v. Clark, 21 Pick. 393. ����