, 1863-09-15
LAW INTELLIGENCE.
Circuit Court t.-.Opluion of Judge
TytllIams.

In the Circuit cou1s yesterday. Judge Williams
rendered an able decision, which We give yer.
bat!m below, in the case of Alfred g. Peckham
etoI, ye. Benjamin F. Hadduck ct al. The case
involves large amount Of money as well as a
novel question, making 1t Of Importance to the
public generally The opinion itsen contains a
statemeut of the facts necessary to It's intelligent
pe1usal Here follows 1he decision:
Alfred G. Pcclham ct al, vs. Benjamin F. Had
duck ct dl-Tle facts in this case are simple and
few. usdduck, one Of the defendants, being poa-
eceeed OF certain real estate, sold it to Rckox and
took from him three notea payable in one, two and
three yea1s, secured by mort ,ase on the came
premises. Hickox sold the property to speer,
subject 10 the mortgage The hrtt note was not
paid until come time after Its maturity, when
speer paid IL, and the payment was endorsed
uIoa The note. Subsequent to the payment OF
the note an arrangement was 1asde by Speer and
md Hadd1ck, with one OF the compl sinants.
Thompson, by which Thompson was to advance
to speer s66fi 81 fo- three ycars, and as security
for said advance Thompson was to have q lion
npon the mortCaged premises fos that sum BY yir-
tue Of Il certain Written agreement endorsed on
the back OF the note, which ia as follows fhayipp
ffst changed the endorsement Of Payment 60 az
to show only payment Of Interest On the other
netea):
Received Of Archibald Thompson. az pur.
chaser and aaaignre, the fnll amount OF the within
note and interest ,:nm date, tthe interest to the
l.th Of May On the other two notcs being psid by
l. Epecr as abovel, and in Consideration Of
faid purchase payment hereby sell, assign
With al interest accrued, OF to accrue, incladnr
the Incident security by trust, decd or mortgage
Of Hsckox the maker. But it is understood that
snid Thompson is not to psoceed thereon untll
I'D ~ 10 try
sid two next notes included In same security BY
dccd OF mortgage; i being understood that !,
spccE, nssigIee Of H!cEo14 twho also undersigns,)
= to have three yeass from date to pay this note
BY hts allowing or paying ten per cent. interest
on the nd. aneo purchase money (amoant on the
In purchase OF tlfs note b. said Thonpeon, Cal
ca:o June 2lth, 1856, Benjamin r Haddnck xud
sad speer hereby esEe ea TO pay the within note
and interest accrued besides ten per cent. here
after a. ADORE
.'Chicago. Ju1c ~, 1856. IsAAc SEER"
Thompson conveyed his interest In the notes
and mortgages to Fitch, and Fitch conveyed to |
Pccklam, who now claims lien upon the Land |
for the amount Of the note. The defendants de- |
mur to the bill
conplainants contend that the demurtc. must |
be ove11uled, because the bill alleged that the |
agreement was for lien upon the property, and |
mat the statute OF fraud not having been set up,
saeh IN agreement would bt good even ifit rested
In pasol merely, and ehould be enforced BY |
cont Of equity.
There might be force in this argument. were It
not that the btn not Only set up th.t the lien as
to be created, but Ect forth the particular av IN
which 1t was to be done. The agreement wao
reduced to writing, and il fully Get out In the b,
and By the ordinary tulea Of evidence, all cont.m
norancous parol testimony IL to be exc1ndcd -
By force OF this written Instrument, = lien v.s
created upon the property, then the compla. snfs
may come into court to enforce it. limo such iirn
was created BY the writing, then none can cxisf
II this Indictment gives TO the complainant a
mortgage OF lien, the dcmuncs must be over
ruled !; II It does not, then It must be sustained
for every allegation ms to the intentions OF the
parties must be construed with reference to the
method in which th0te Intentions were carsird
TITO effect
The question is not SO much what the n,,t,rs
Intended to do, but what they did, What chr
ettuctiou docs the law place upon their acfee-
sDentf 1
There is an aspect ofthis case in which the com.
pf1inants may be regarded as POSSESSING the |
strongest claim to the favorable Judgment Of ihe /
Court. Thompson advanced his money upon the |
laith Of lien. All the parties to the Agfeement |
he IVES obtaining u lien. Had It not |
been for this expected lien Thompaon would not |.
u al probability. hare parted with dollar OF
his money.
1ence, ought court Of equity now to deny to him
shat III the parties intended he should hsye?
On the other hand It must be admitted that the