Page:Federal Reporter, 1st Series, Volume 6.djvu/566

 564 FEDERAL REPOHTER. �ises, and might pass with a conveyance of them, although not specially mentioned or described therein, if such waa the intention of the parties, of whieh I think there can be no donbt. �The controversy between the plaintiff and defendant con- cerning the right to this water is purely a legal one. The former bas no claim to any superior equity or merit over the latter. It was not misled by the terms of the defendants' mortgage to give credit to any one upon the supposition that Miller still owned the water-power unaffeoted by the mort- gage to Apperson, but having an unsecured debt against Miller or Yocum, or both, it took this mortgage for what might be made out of the property as against the defendant Apperson. �The decision of the court will be that the plaintiff recover of the defendant Miller the sum of $11,500, with interest thereon from January 2, 1880, and that the defendant Ap- person recover of said defendant the sum of $20,000, witH interest thereon from Oetober 13, 1879; that the lien of the mortgage of said Apperson extends to the water-power, as well as the lots and improvementa thereon; and that the amount due said Apperson be first paid from the proceeds of the sale of said premises, together with the legal costs and expenses incurred by him in this suit; and that the balance, if any, be applied upon the debt due the plaintiff; and that the lien of both said mortgages be held satisfied, and the purchaser of the premises take the same discharged there- from. ��� �