Page:Federal Reporter, 1st Series, Volume 10.djvu/861

EUBfiABU V. BELLEW. 819 �HuBBARD V. Bellew and others. {Circuit Court, W. B. Witcowin. February 4, 1882.) �1. CoNTBACT — Construction. �A written contract was entered into in August, 1875, between B. on one side and certain parties residents of another state, by their attorney, S., on the other side. By the contract, the parties, through their attorney, agree to sell to B. a quantity of timber lands, the priee to be determined by an estimate to be afterwards made of the amount of pine timber upon each description of land at $2.50 per acre for the stumpage. They also agree to sell to B. the pine timber upon certain other lands described, at the rate of $2.50 per thousand feet for stumpage. B., on his part, agreed to build a saw-mill worth $9,000 upon one of the 40-acre tracts, to be selected by him ; and the other parties agree to give him title to the 40-acre tract so selected for the mill site, •which B. is to have the privilege of mortgaglng to an outside party in the sum of $6,500, and then he is to give a second mortgage back to the vendors to secure the faithful performance of the contract. After the execution and delivery of the contract, B. borrowed f rom H. , the plaintitE in this suit, upon the strength of the contract, about $10,000, to build and complete the contemplated mill. After the mill was built, B. gave to H., the plaintifE herein, a deed intended as a mortgage of the mill and mill site, to secure him for his advances, without the knowledge of 8., the agent of the vendors, and before they had made any conveyance of the land to B. Afterwards the vendors brought suit in the state court to enforce a specifie performance of the contract, and obtained a decree for that purpose against B., from which an appeal was taken to the supreme court, and the decree afflrmed, H. not having been a party to the suit. Held, that B., under the contract, was at liberty to select any 40-acre tract for the mill site, whether one of the forties he was to purchase or one of those from which he was to buy the timber. �2. Same — Lien for Moneys Advanced. �Where moneys were advanced upon the strength of a contract, and a subse- quent conveyance was received to secure such advances, the party so making the advances is, under the circumstances of the case, justly and equitably enti- tled to a lien upon the mill forty as against the owners of the land, but not exceeding the sum mentioned in the contract. �3. Same — Parol Modifications— Not to Apfect Equities. �Where a party had agreed to advance money upon the strength of a written contract, he becoming the third or outside party named in the contract, auy paroi or other modification of the written contract unknown to him cannot affect his equities, whether made before or after the time he made the advance». �In Equity. �J. S. Andcrson and Vilas e Bryant, for eomplainant. �Sloan, Stevens e Morris, for defendants. �BuNN, D. J. This is a suit in equity brought to have a lien de- clared and enforced against a certain 40 acres of land, and saw-mill situate thereon, lying in the county of St. Croix, in this state, described v.l0,no.9— 54 ��� �