Hendricks v. Webster

• Decision Date: 17 February 1908
• Docket Number: 2,657.
• Citation: 159 F. 927
• Parties: HENDRICKS v. WEBSTER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

159 F. 927

HENDRICKS v. WEBSTER et al.

No. 2,657.

United States Court of Appeals, Eighth Circuit.

February 17, 1908

B. N Hendricks (W. L. Converse and D. L. Grannis, on the brief) for appellant.

John McCook, for C. F. Webster.

Joseph Griffin and W. L. Barker, for Chris. Hansen.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

CARLAND District Judge.

In a proceeding had in the court below for the purpose of determining the priority of certain liens upon land belonging to the estate of Chris. Hansen, a bankrupt, the District Court on May 22, 1907, ordered, adjudged, and decreed:

'That the mortgage made by the bankrupt and his wife to James Hendricks January 31, 1898, on the S. 1/2 of the S.W. 1/4 of section No. 22, township No. 99 N., range No. 14 W does not by its terms secure any loans that may have been made by the mortgagee to the bankrupt, since the making of said mortgage; that said mortgage secured only the note of $1,500 therein described, the interest thereon and such sums as Mr. Hendricks may have paid as taxes upon said land, for insurance, to keep buildings in good state of preservation, or to otherwise preserve and protect said mortgage lien, and any costs, or expenses of foreclosure.'

James Hendricks appealed from said decree to this court, and also filed an original petition asking for a review of the same. As we are asked to consider evidence in the record, we dismiss the petition for review, and will hear the case upon the appeal. The clause in the mortgage referred to in the decree appealed from which it is claimed by Hendricks created a lien for future advances is as follows:

'It is further agreed that if the party of the first part shall fail to pay any installment of interest within thirty days, after due, or permit said lands to be sold for taxes to any person, or fail to perform any of the covenants in the note or in this instrument, or do, or fail to do, anything whereby the security of this loan of money may be lessened, then the whole amount of the debt hereby secured shall become due and collectible at once, at the option of the holder without notice, and this mortgage or trust deed may be foreclosed for the full amount, together with interest, costs, taxes, insurance, reasonable attorney's fee for plaintiff's attorney, to be assessed by the court, and any other sums advanced or expenses incurred on account of the party of the first part for whatsoever purpose paid, and any advances so made shall draw interest at 7 per cent. per annum, and be liens under this mortgage.'

Prior to the hearing in the District Court evidence was taken in the proceeding by a referee. Before the referee B. N Hendricks, son of James Hendricks, who negotiated the loan and made out the mortgage, and his partner, C. C. Arnold, were permitted to testify that Chris. Hansen and Alice Hansen, his wife, at the time of the execution and delivery of the mortgage, made declarations tending to show that the mortgagors understood the mortgage as providing for future advances, B. N. hendricks testified that he so understood it. Chris. ...