Page:Federal Reporter, 1st Series, Volume 4.djvu/600

588 FEDERAL REFOBTEa. �the land, although valued by ihe acre and not absolutely contiguous legal subdivisions, was praotically one body — the land grant of the Coos Bay Wagon Eoad Company. Neither is it to be supposed that the plaintiff would sell the patented part of this grant, which the proof shows, and the court almost judicially knows, was worth much more than the. remaining portion, separately, for the same price pef acre as the other. �Most certainly the price was an average one for the whole grant, and the sale au entirety. And, as was said in Johnson V. Johnson, supra, in the consideration of a similar question, "the grossest injustice would ensue" if the defendant was suffered to retain the better part free from the vendor's lien for the price of the poorer part, upon the arbitrary assump- tion that the sale was made by two separate contracts. Nothing incapable of mathematical demonstration is more certain than that the parties to this transaction never con- templated that this otherwise single and entire contract of sale was resolved into a number of distinct and separate ones, simply because it was thereiu provided that the convey- ance should be made from time to time as fast as the land was surveyed and patented. �The agreement on the part of the stockholders of the road to traiisfer the stock to Benchley, as trustee for Miller, to be held by him as such trustee until the final payment was made on the land, was duly performed; but this was not intended as a security for the payment of the purchase money, but rather a security or provision for the custody of the stock during the pendency of the transaction and its delivery upon the final completion thereof. �But this stock, and the road which it representa, are not shown to bave any appreciable value ; and from this, and the very nature of the case, the reasonable inferenoe is that its value at most is inerely nominal. The formation of the company and the construction of the road were the means or device by which the land grant was obtained from the state, and thereafter, I apprehend, neither was of any benefit to any one save the public. Evidently, the stock was a mere pominal and formai part pf the transaction, and did not, in ����