Page:United States Reports, Volume 209.djvu/80

 54 OCTOBER TERM, 1907, Opiaion of the Court. 209 U.S. Mr. Walter Bennett, for appellees. JUSTICE HOLMES delivered the opinion of the court. This is an appeal from a judgment on demurrer dismissing the appellant's complaint. The prayer of the complaint is to have declared and foreclosed a mortgage lien on certain land as against the defendants, who also claim liens upon the same, and is based upon a ffritten agreement set forth. This instru- ment recites that the appellant and William J. Rainey have bought the land for $18,000, in the proportions of two-thirds and one-third respectively, for the purpose of improving and selling it; that the whole consideration was paid in cash by the appellant, and that Rainey has agreed to repay the one- third with interest. It agrees that the improvements as speci- fied shall be carried on with reasonable diligence and dispatch, and that the appellant will make necessary advances, and then goes on: "Fourth. That all money advanced by said Jesse Hoyt Smith in said purchase, as well as all such as skall be hereafter advanced by him for any of the purposes afore- said, shall .be considered and treated as a loan or loans by him, and shall be paid to him as rapidly as possible from the re- ceipts from the sale or sales or other income of said property until the same shall be fully paid at six per cent. per annum and before any division of profits shall be male or paid." The argument for the appellant and the decision below turned mainly on the sufficiency of this clause to create a lien. Standing by itself, and still more if taken only in connection with the next clause, which provides that if all the loans have not been repaid with interest in five years Rainey shall repay his one-third on demand,' 'it well might be held not to be enough. It might be held not to go beyond a personal under- taking, with an indication of a fund as the limit and only source of repayment until five years should have elapsed. But it is necessary to consider the whole document. The sixth clause gives Rainey the general mgnsge merit,

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