Page:Federal Reporter, 1st Series, Volume 3.djvu/456

BirBBARD V. BBLIiBW. 449 �last-namej contract ai ihe time of its execution, and that the terms of the written contract abqve sej; forth were mada and inserted therein in view of the agreement between Bellew and Hubbard for the loan of the money, and that the plaintiff, Hnbbard, is the outaide or third partj ref erred to in the writ- ten contract as the one who was to advance the money and take the first mortgage. �By paroi agreement between the parties to the written con- tract, subsequently made, it was agreed that the forty selected by Bellew for the mill site might be one described in the con- tract, opon which Bellew was to ont the timber merely, but he was to have the title conveyed to him just the same in consideration of building the mill. This change was made without the knowledge of Hubbard. �It is also alleged that, with the knowledge of defendants, the plaintiff made further adyancea of money to Bellew upon the aame terms, of having a first mortgage upon the mill, amount- ing, with the $6,500 already advanced, to $10,000. �Afterwards, in February, 1876, to secure these advances, Bellew and wife executed a deed to the plaintiff of the mill forty, and the deed was recorded. The deed was absolute on its face, but intended as a mortgage to secure the advances made to Bellew, and for which a first mortgage was to be given. �The complaint further shows that no deed of the mill forty was ever given to Bellew, and that Bellew, with the knowledge and approbation of defendants, colluded with the agent Smith, in not making a deed of the mill forty, in order to prevent the title enuring to the benefit of Hubbard, under his conveyance from Bellew, and to give the first lien to the defendants. �In April, 1877, the defendants, who were parties to the contract for building the miU and the sale of the land, brought an action in the circuit court of St. Croix oonnty against Bellew alone, he having failed to pay for the land as agreed for, a strict foreclosure of the contract. The case was tried in that court in Janoary, 1878, and a judgment rendered for the plaintiffs. Au appeal was taken by Bellew to the supreme �v.3,no.8— 23 ����