APPEAL from the Circuit Court for Wisconsin, in which court Seamens and others filed a bill against Swain, praying that a mortgage executed to him, Swain, by Medbery and wife, on certain lots, of which he, Seamens, and the others were now owners, in Wisconsin, might be cancelled.
It appeared that in 1855, Swain sold to Medbery and one Aldrich real estate in Michigan for $52,400, of which $10,000 was paid in cash, and the balance, $42,400, secured by a mortgage on the lands, payable in instalments at different times; and that on this Michigan land, foundations had been made in the previous autumn, by driving piles for the erection of a saw-mill fifty by one hundred and fifty feet in size; that Medbery was then the owner of certain lots in Wisconsin; and that on the same day and in pursuance of articles of agreement preceding the sale, to give additional security to the extent of $6666.66, he and his wife executed to Swain a mortgage on these lots as additional security.
On the Wisconsin mortgage, Swain, on the same day that it was given, indorsed the following stipulation, which gave rise to this suit:
'It is hereby agreed, that if within two years from this date the large saw-mill, fifty by one hundred and fifty feet in size, shall be property built and completed, upon the foundation commenced last fall, by driving piles, to accept in place of the within mortgage, security in proper fire insurance policy, or policies, on said large saw-mill, and thereupon to discharge the within mortgage.'
The stipulation above made was in pursuance of a contract made by the purchasers in the previous articles of agreement, to keep the buildings erected, and the large saw-mill to be erected, upon the premises, insured in some safely reputed fire insurance company or companies against fire, and that they should assign the policy or policies to Swain, and that in default thereof it should be lawful for him, Swain, to effect the insurance himself, and that the premiums and the costs and charges of his doing so, should be a lien on the mortgaged premises.
THE BILL alleged that subsequently to the execution of the agreement indorsed by Swain on the mortgage, and within the two years, there was built and completed upon the Michigan lands, and upon the foundation referred to in the said agreement, a large saw-mill, not of 50 by 150 feet, but of 78 by 100; this mill, however, being larger and of greater value and better adapted to the purposes intended than one of the dimensions originally contemplated; and that the said mill, as built and completed, was assented to and accepted by Swain as a compliance with the said written agreement indorsed on the Wisconsin mortgage; that in May, 1856, Medbery and Aldrich caused the new saw-mill to be insured in different companies named, to the extent of $6000; and that these policies of insurance were duly transferred and delivered to Swain, and accepted and assented to by him as a compliance with the agreement, and that he had them in possession; that in October, 1857, Swain caused the new mill to be further insured for one year in the name of Medbery & Aldrich, for his own use and benefit; that in September, 1858, he again caused the new saw-mill and other buildings on the premises to be again insured for one year in the name of Medbery & Aldrich, but for his own security, and paid out for premium $210; that all these insurances mentioned were obtained at the request of Swain, with the consent of Medbery & Aldrich, and upon the understanding that they should reimburse him the premiums; that in November, 1858, Swain and Medbery & Aldrich accounted respecting the amount due upon the mortgage, and that Medbery & Aldrich then paid him $15,236.06, in which sum was included, as paid by Swain during 1857 and 1858 for premiums on the new saw-mill and other property mentioned in the mortgage, the sum of $446.50, and interest.