A father owning in fee an equal undivided one-third part of a
lot of land and having a life tenancy in the other equal undivided
two-third parts, and his two daughters each owning in fee an equal
undivided one-third part, subject to such life tenancy, the three
executed a mortgage on the lot, for a loan of $30,000, in which the
mortgagors agreed to keep the building on the lot insured against
fire in its fair insurable value and assign the policy to the
mortgagee, to be held by him "as collateral and additional
security," with the right to collect the insurance money and apply
it on the mortgage. On a partition of the lot between the father
and the daughters, they paid $10,000 to the mortgagee on the
principal, and he released from the mortgage the part belonging to
the father. The father, with the money loaned, had erected a
building on the part of the lot allotted to the daughters, and he
thereafter collected for his own use the rents, and paid the
interest do the mortgage, and the taxes, and the fire insurance
premiums. The building, being insured for $15,000 by a policy in
the name of the father, the loss being made payable to the
mortgagee, was destroyed by fire. The loss being more than that
sum, the mortgagee received a draft for $15,000 on the insurance
company, drawn by its agent, to the order of the mortgagee, and
agreed in writing with the father, by an instrument which stated
that the mortgagee held the policy as collateral security for the
payment of the loan, that the right to apply the $15,000 on the
debt was waived, and that the money should be deposited in a bank
to be selected by the father, to his credit and at his risk, to be
used in erecting a building on the lot, the money to be paid out on
the father's checks, countersigned by the mortgagee, within six
months, or the waiver to be of no effect, and the mortgagee to have
the right to apply the money on the debt. Thereupon the mortgagee
endorsed the draft to the order of the father, he designating as
the bank of deposit a bank of which he was president and taking the
draft and collecting it, and depositing the money to his credit in
the bank. The mortgagee countersigned no checks against the money,
and no building was put up. The daughters had no knowledge of the
transaction. In a suit to foreclose the mortgage, the daughters
claimed that the $15,000 should be credited on the mortgage, as
against them:
Held:
(1) Authority in the father, as representing his daughters, to
make the agreement as to the $15,000, could not be implied from the
general power he exercised over the property, in managing it, and
procuring insurance and paying taxes, the daughters having
themselves executed the mortgage.
Page 117 U. S. 635
(2) The insurance was obtained in pursuance of the requirements
of the mortgage, and must be presumed to have covered the interests
of all the mortgagors as an entirety.
(3) The mortgagee in fact dealt with the $15,000 not as the
father's money, but as representing a further security furnished
under the mortgage, and as something which concerned the rights of
all the mortgagors, because the agreement with the father
recognized the obligation either to credit the money on the
mortgage or to see that it went to restore the building.
(4) The provision of the policy that the loss should be payable
to the mortgagee placed him in the same position as if the policy
had been in the name of all the mortgagors and been assigned to the
mortgagee, and he was bound to apply the money in accordance with
the provisions of the mortgage, for the benefit of all the
mortgagors, unless all consented to a different disposition of the
money.
(5) In any view, if the agreement with the father was valid as
against the daughters, the mortgagee was bound to see that the
money was used to restore the building or else credit it on the
mortgage.
(6) That the transaction amounted to a collection of the $15,000
by the mortgagee and as a satisfaction of the mortgage to that
extent as respected the estate of the daughters, leaving the
mortgage a lien for $20,000, as regarded the life estate of the
father.
It is proper to sell the estate in remainder and the life estate
separately and to apply the proceeds of the latter first to satisfy
the amount for which it is the sole security, not applying any of
such proceeds to pay costs or taxes or any part of the debt for
which there is other security till the full payment of the sum for
which the life estate is the sole security.
This was a bill in equity to foreclose a mortgage. The case is
stated in the opinion of the Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
On the 10h of September, 1866, J. Young Scammon, of Chicago,
Illinois, and Florence A. D. Scammon and Arianna E. Scammon, his
daughters, were the owners of a lot of land in Chicago, No. 90
Michigan Avenue, known as "lot number five (5), in block number
eleven (11), in Fort Dearborn addition to Chicago," the father
being the owner in fee of an equal undivided one-third part of the
lot and having a tenancy for life
Page 117 U. S. 636
in the other equal undivided two-third parts, and his two
daughters being each the owner in fee of an equal undivided
one-third part, subject to such tenancy for life of the father. The
lot had descended to the two daughters and a brother of theirs from
their mother, subject to the tenancy for life of the father, and he
had purchased from the son the fee of his equal undivided one-third
part.
On the day above named, Scammon and his daughters executed to
the Connecticut Mutual Life Insurance Company, a corporation of
Hartford, Connecticut, a mortgage covering the above lot by the
above description to secure the payment of $30,000, in five years,
with semiannual interest at eight percent per annum, according to
the condition of a bond which they at the same time executed. The
bond stated that it was given for an actual loan of money made by
the obligee to the obligors on the day of its date.
The mortgage contained the following covenant on the part of the
mortgagors:
"And further that they, their heirs, executors, and
administrators, shall and will at all times hereafter, until said
principal sum of money, and all arrearages of interest thereon,
shall be fully paid, keep all the buildings (outhouses excepted)
now situate or that hereafter may be erected upon said premises
fully insured against loss or damage by fire, in some good and
responsible insurance company or companies satisfactory to the said
party of the second part, its successors or assigns, or its or
their authorized agent in the fair insurable value of such
buildings, and will legally and properly assign and deliver to the
said party of the second part, its successors or assigns, each,
all, and every, the policies of insurance therefor, as soon as and
whenever such insurance shall be effected, and will also deliver to
said party of the second part, its successors or assigns, or its or
their authorized agent, all premium or renewal certificates
received for the payment of the premium upon such policy or
policies of insurance, as soon as and whenever such certificates
shall be issued; and, in default of so doing, the said party of the
second part, its successors or assigns at its own or their option,
may effect such insurance in its or their name or names, or
otherwise, and the
Page 117 U. S. 637
premium money paid therefor shall be a charge upon said
premises, and shall be secured by this instrument in the same
manner as the said principal sum of money above mentioned is
secured, and such premium money shall be paid by said parties of
the first part, their heirs and legal representatives, to said
party of the second part, its successors or assigns, on demand, and
may be collected at any and all times after the same shall have
been paid, with interest thereon at the rate of ten percent per
annum from the time the same shall be advanced, and the said party
of the second part, its successors or assigns, shall hold each and
all such policies of insurance so received, by assignment or
otherwise, as collateral and additional security for said principal
sum of money and interest, and shall have the right to collect and
receive any and all money and sums of money that may at any time
become collectible or receivable upon each, all, and every of such
policies of insurance, and apply the same, when received, in the
same manner, as far as possible, as is hereinafter provided for in
case of a sale of said above-described premises under the power of
sale hereinafter contained. But nothing herein contained shall be
construed as requiring the said party of the second part, its
successors or assigns, to incur any expense or make any effort to
collect any money that may become due on any of such policies of
insurance; but if it or they shall elect not to collect the same,
they shall make such election within a reasonable time after such
money shall become collectible, and, on demand of said parties of
the first part or their legal representatives, shall thereupon
forthwith, after making such election not to collect, reassign and
deliver such policy or policies of insurance to said parties of the
first part, their executors, administrators, or assigns."
In the fall of 1867, by an arrangement between Scammon and his
daughters, the south one-third part of the lot was conveyed to his
appointee by them in fee as representing his existing interest in
fee in the lot, and the north two-thirds part of the lot was
conveyed by him to them as tenants in common in fee as representing
their existing interest in fee in the lot, subject, as to such
north two-thirds part, to the life estate of
Page 117 U. S. 638
the father therein. Thereupon the father and daughters paid or
caused to be paid to the mortgagee $10,000 as a reduction of the
principal of the mortgage, and it released, by deed, from the lien
of the mortgage such south one-third of the lot.
With the money lent on the mortgage, Scammon erected a building
on the north two-thirds of the lot, and thereafter collected for
his own use the rents from it and paid the interest on the mortgage
and the taxes and the fire insurance premiums. Insurance against
fire covering the building for $15,000 was effected by Scammon by a
policy issued by the Liverpool and London and Globe Insurance
Company in his name, with a clause making the loss payable to the
mortgagee. The building was destroyed by fire in October, 1871,
and, the loss being adjusted at a sum greater than $15,000, a draft
for $15,000 was drawn at Chicago, by the agents of the fire
insurance company there, on that company at New York, payable to
the order of the mortgagee. The draft was handed to Scammon, and at
his request, the agent of the mortgagee at Chicago sent it to the
mortgagee at Hartford, with an application from Scammon to have the
$15,000 paid to him to enable him to rebuild the building.
Thereupon the following instrument was executed in duplicate by the
mortgagee and Scammon, a copy being retained by each:
"Memorandum of agreement made and entered into this fifth day of
January, A. D. 1872, between the Connecticut Mutual Life Insurance
Company, a corporation subsisting by the laws of the State of
Connecticut and located and doing business in the City of Hartford
in the State of Connecticut, of the one part, and J. Young Scammon,
of the City of Chicago, in the County of Cook and State of
Illinois, of the other part, witnesseth:"
"That whereas, the said party of the second part did, on the
tenth day of September, A. D. 1866, make, execute, and deliver to
the said party of the first part a certain indenture of mortgage,
bearing date on that day, on the following described premises,
situate and being in the City of Chicago aforesaid -- to-wit, lot
number five (5), in block number eleven (11), in Fort Dearborn
addition to Chicago -- for the purpose of securing the payment of
the certain bond or obligation of the
Page 117 U. S. 639
said party of the second part bearing even date with said
mortgage, in the penal sum of sixty thousand dollars, conditioned
for the payment to said party of the first part of the sum of
thirty thousand ($30,000) dollars on the tenth day of September, A.
D. 1871, with interest as therein stated, on which said mortgage
has been paid ten thousand dollars of principal, and whereas, the
building on said premises, known as No. 90 Michigan Avenue, in said
City of Chicago, was insured in the following company, and in the
following amount -- to-wit, the Liverpool and London and Globe, in
the sum of fifteen thousand dollars -- which said policy of
insurance was held by said party of the first part as collateral
security for the payment of said loan, any loss on said policy to
be paid to said party of the first part, and whereas, said building
has been destroyed by fire, and the insurance moneys to be received
on said policy or policies are subject to be paid to said party of
the first part in accordance with the conditions of said mortgage,
and whereas, said party of the second part desires said party of
the first part to permit and suffer said insurance money to be used
in and upon said mortgaged premises in the reconstruction of said
building or buildings thereon, and said first party is willing to
have said insurance money so used upon the terms and conditions
hereinafter set forth, and to assist in the collection and receipt
thereof by said second party from said fire insurance company or
companies for the purposes aforesaid, it is therefore mutually
agreed by and between the parties hereto that said party of the
first part waives, except as hereinafter provided, its right to
apply on the said indebtedness the moneys that may be received on
said policy or policies of insurance, and that any and all such sum
or sums of money as shall be so collected from said fire insurance
company or companies, by either of the parties to this instrument,
shall be deposited in such bank or banks as shall be selected by
the party of the second part and assented to by the said first
party, to the credit and at the risk of said party of the second
part, to be used in the erection of said building or buildings on
said mortgaged premises; that said money shall be paid out and
expended in the erection
Page 117 U. S. 640
of said building or buildings, from time to time, on the drafts
or checks of said party of the second part, countersigned by the
said party of the first part, or its duly authorized agent or
attorney, until said insurance money is fully expended, as herein
provided, on said mortgaged premises; that said drafts or checks
shall be so countersigned upon the presentation thereof to said
party of the first part, its duly authorized agent or attorney,
together with a certificate of a competent and credible architect
that the amount of said check or draft, together with all previous
checks or drafts drawn or paid out on said account, has been
actually expended in and upon said mortgaged premises, in the
permanent improvements thereon, and that the work and material for
which the amounts so expended have been paid are fully worth such
sum."
"If, however, said buildings are being constructed without the
supervision of an architect, the affidavit of said party of the
second part to said facts may at the option of said first party, be
received in lieu of said architect's certificate. And it is further
understood and agreed that so soon as said building or buildings
shall be in a situation to be insured, said party of the second
part shall cause the same to be insured in some good and
responsible insurance company in the fair insurable value thereof,
and assign and deliver the same to said party of the second part,
and, as soon as said building shall become so insurable, all the
provisions contained in said above-described mortgage shall apply
to said insurance, and said conditions are hereby made a part of
this agreement. It is also expressly understood that any receipt or
acknowledgment given by said party of the first part, either alone
or jointly with others, to any such insurance company or companies
for the purposes aforesaid of facilitating the collection by said
second party of any insurance money intended to be placed back on
said mortgaged premises as aforesaid, shall not be construed as a
collection of said money by said first party under the conditions
of said mortgage, wherein and whereby it is provided that said
first party may collect and apply such insurance money upon the
indebtedness secured to be paid thereby, but merely as enabling
said second party to collect
Page 117 U. S. 641
said insurance moneys. Said moneys are not to be so applied, and
said mortgage shall remain a lien on said mortgaged premises for
the full amount of the principal money mentioned in said bond, with
the interest thereon, as if said moneys had never been
collected."
"It is also further expressly understood and agreed that said
insurance money shall be expended on said mortgaged premises as
above provided with all reasonable and proper dispatch, and that in
the event that from any cause, whether the death or absence of any
party or parties to this agreement or any other cause, said money
shall not have been so expended within six months from the date
hereof, then this agreement of waiver shall thereupon become
thenceforth null and of no effect and the right of said second
party to use and expend said moneys shall thereupon cease, and said
first party shall have the right to draw from the said bank or
banks, upon its own check or checks or that of its authorized agent
said insurance moneys or so much thereof as shall not then have
been actually expended as provided in this agreement, and apply the
same in payment
pro tanto of the indebtedness secured by
said mortgage, and such check or checks of said first party or its
agents, as aforesaid, drawn at any time after the expiration of six
months from the date hereof, shall be a full discharge and
acquittance to said bank or banks for any moneys paid thereon. It
is expressly agreed that time shall be of the essence of this
agreement in all its parts, and that said agreement shall be
binding upon the heirs, executors, administrators, successors, and
assigns of the respective parties."
On the execution of this agreement, the mortgagee endorsed the
draft, making it payable to Scammon or his order, and sent it to
its agent at Chicago. Scammon signed on the agreement a written
designation by him of "the Marine Company of Chicago," a banking
institution of which he was then president, as the banking office
in which to deposit the $15,000, and the draft was then delivered
by the agent to Scammon and collected, and the proceeds were
deposited to his credit in the Marine Company. The transaction
between Scammon and the agent took place at the banking company's
office, and the
Page 117 U. S. 642
agent exhibited the copy of the agreement to Scammon as
president of the bank. No checks against the money were ever
countersigned by or on behalf of the mortgagee, nor was any of it
used in putting up any new building on the lot, nor was any such
new building put up. Scammon's daughters had no knowledge or
information as to any part of the transaction between their father
and the mortgagee in regard to the $15,000.
Under that state of facts, the mortgagee, in June, 1876, filed a
bill in equity, in the Circuit Court of the United States for the
Northern District of Illinois for the foreclosure of the mortgage,
making as defendants Scammon and the two daughters and Reed, the
husband of one of them, and other persons. The bill credits the
payment of the $10,000 in November, 1876, as one by Scammon and his
daughters in reduction of the principal of the mortgage, and sets
forth the release of the south one-third of the lot from the lien
of the mortgage, but ignores any credit of the $15,000, and claims
as due $20,000, with interest at eight percent per annum from
September 10, 1873, and moneys paid by the mortgagee for taxes and
assessments.
Mrs. Reed and her sister answered the bill. The answer sets
forth the transaction in regard to the $15,000, and avers that it
took place without the knowledge, authority, or consent of the
daughters, and that the mortgagee, in consenting to the use of the
$15,000 in any other way than in payment of the mortgage
indebtedness, relied on the credit of Scammon and released the
property of the daughters to that extent. It claims that Scammon's
life estate in the north two-thirds part of the lot should be first
sold, and the proceeds be applied first in payment of the remaining
$5,000 and interest, and the property of the daughters be thereupon
released from all further liability.
After issue, the court referred the cause to a master to take
proofs and report them with the amount due to the plaintiff. He
reported the testimony, and that there was due $20,000 of
principal, and interest from September 10, 1873, and certain sums
paid by the plaintiff for taxes and assessments, with
Page 117 U. S. 643
interest thereon. Mrs. Reed and her sister excepted to the
report, and the case was heard on the exceptions. The court
rendered a decision 4 F. 263, in which it was ruled (1) that
authority in Scammon, as representing his daughters, to make the
special agreement in regard to the $15,000 could not be implied
from the general power he exercised over the property in managing
it, and procuring insurance and paying taxes, the daughters having
themselves executed the mortgage; (2) that the insurance was
obtained in pursuance of the requirements of the mortgage, and must
be presumed to have covered the interests of all the mortgagors as
an entirety; (3) that the mortgagee in fact dealt with the $15,000
not as Scammon's money, but as representing a further security
furnished under the mortgage, and as something which concerned the
rights of all the mortgagors, because the agreement it made with
Scammon recognized its obligation either to credit the $15,000 on
the mortgage or to see that it went to restore the building; (4)
that the provision of the policy that the loss should be payable to
the mortgagee placed it in the same position toward all the
mortgagors as if the policy had been taken out in the names of all,
and assigned to the mortgagee, and it was bound to apply the
$15,000, in accordance with the provisions of the mortgage, for the
benefit of all the mortgagors, unless all consented to a different
disposition of the money; (5) that, in any view, if the agreement
with Scammon was valid as against the daughters, the mortgagee was
bound to see that the money was used to restore the building or
else credit it on the mortgage.
Under these views, the court referred the case back to the
master with directions to restate the account according to the
principles thus laid down. He did so and, the case being heard on
his report, the court, on the second of October, 1882, rendered a
decree, which, after setting forth the material facts above stated,
contains the following clauses:
"The court further finds that when the complainant originally
took the said mortgage, it, by its agent, knew the state of the
title of the mortgaged premises; that in the erection of the
building on said premises, and causing it to be insured, and
Page 117 U. S. 644
in collecting rents and paying the insurance premiums and taxes,
the defendant J. Y. Scammon held the property as if it was his own;
that the entire business connected with the loan from the
complainant, from the time of its original negotiations down to the
time of the before-mentioned agreement in relation to the
insurance, was transacted by J. Y. Scammon, who kept an account of
property in his bank ledger, in which rents by him received were
credited, and the moneys paid out were also entered; that the
defendants Florence A. D. Reed and Arianna E. Scammon knew nothing
at the time of the insurance obtained upon the property nor
anything in relation to the agreement between their father and the
complainant made in 1872; that the complainant entered into the
agreement for the payment of the insurance money to Scammon, to be
by him used in rebuilding, in good faith, and that said Scammon
received it in good faith for that purpose, and the officers of the
bank where it was deposited understood that the money was deposited
there as a special deposit, subject to said agreement."
"The court further finds that Florence A. D. Reed and Arianna E.
Scammon did not know that this insurance had been effected on the
property, or of the payment of premiums thereon, and were never
consulted about the disposition of the insurance money, and had no
knowledge of, and gave no consent to, its payment to their father
and its deposit in the bank, and have never asserted any rights in
relation thereto until the commencement of this suit."
"The court further finds that the acts of Florence A. D. Reed
and Arianna E. Scammon were limited to the execution of the bond
and mortgage and the making of the agreement for partition; that
said insurance was furnished under the covenants of the mortgage,
and pursuant to the requirements thereof, and was an additional
security held by the complainant for the payment of the principal
sum and interest secured by said mortgage, and that the covenants
in the mortgage for insurance operated as an assignment of the
insurance fund, when collected, to the mortgagee; that the acts of
the complainant, its receipt of the draft for said insurance money,
and its endorsement
Page 117 U. S. 645
thereof to the defendant J. Y. Scammon, by ordinary commercial
endorsement, and its assumed control over the ultimate destiny and
use of the proceeds thereof, were equivalent to a collection of the
insurance by the complainant; that the receipt by the complainant
of said insurance money operated as a satisfaction
pro
tanto of said mortgage so far as the estate and interests of
the defendants Florence A. D. Reed and Arianna E. Scammon are
involved, but that so far as the life estate of J. Young Scammon is
concerned, said mortgage remains an equitable lien and encumbrance
for the full amount thereof."
The decree then goes on to declare that there is due at its
date, from Scammon to the plaintiff, on the bond and mortgage,
$20,000 of principal and $13,093.32 of interest, as reported, and
$1,404.44 for interest since the date of the report, and $3,275.42
for moneys paid for taxes and to redeem from tax sales, and $490.73
for interest thereon, as reported, and $287.51 for interest since
the date of the report, being in all $38,551.42; that that sum is a
valid and first lien on the estate of Scammon, for his life, in the
north two-thirds of the lot (excepting therefrom a strip from off
its north side, hereafter mentioned); that of the $38,551.42, Mrs.
Reed and her sister are personally liable for $5,000 of principal
and $3,273.33 interest thereon, as reported, and $351.11 interest
on the $5,000 since the date of the report, and for the above-named
sums of $3,275.42, $490.73, and $287.51, being in all $12,678.10,
which is a valid and first lien on the estate in remainder of them,
and each of them, after the expiration of the life estate of
Scammon, in the north two-thirds of the lot (excepting therefrom
the strip above referred to); and that the $12,678.10 is a valid
and first lien on said strip. The decree then provides for the sale
at public auction of such estate in remainder excepting the strip,
and of such life estate excepting the strip, and of the strip, each
separately, and directs that the proceeds of the life estate be
applied, first, to the satisfaction of the amount for the payment
of which the life estate is decreed to be the sole security, and
that no portion of the amount realized from the sale of the life
estate shall be applied to pay the costs of the suit, or
Page 117 U. S. 646
any moneys found due for taxes, or on account of that part of
the principal or interest of the bond for which there is other
security, until the sum for which the life estate is the sole
security shall have been fully paid. From this decree the plaintiff
appealed to this Court.
The plaintiff assigns for error that the circuit court erred in
giving the daughters credit for the $15,000, but we are of opinion
that the views of that court in its decision, as above set forth,
and as embodied in the decree, were correct. The policy of
insurance was a collateral security for the joint debt of the
mortgagors, furnished in compliance with the provisions of the
mortgage, and the mortgagee was bound to apply the insurance money
to the payment of the joint debt according to the terms of the
mortgage. In the agreement with Scammon of January 5, 1872, the
mortgagee declares that it held the policy "as collateral security
for the payment" of the loan secured by the mortgage, and that the
$15,000 is subject to be paid to it "in accordance with the
conditions" of the mortgage. Although the policy was taken out in
the name of Scammon, it was, under the mortgage, a part of the
security covenanted for therein, and must be treated as having been
furnished by and for the benefit of all the mortgagors. The
insurance was on the building as a whole, and not on any particular
interest in it, and was accepted and treated by the mortgagee as an
insurance complying with the terms of the mortgage, and covering
all the interests which the mortgage covered.
The mortgagee could not, without the consent of the daughters,
surrender the proceeds of the collateral security to Scammon or
divert them from the purpose to which the mortgage devoted them,
and in any event, the mortgagee, if at liberty to use the money
toward restoring the building, was bound to see that it was so
applied, and took the risk of the diversion. The money not having
been so applied, it must be credited in favor of the daughters.
Their intention, declared by the mortgage, that the money should be
credited on the mortgage was never varied by them.
Three persons named Andrews, and the wives of two of
Page 117 U. S. 647
them, were defendants to the bill. It alleged that they had
interests in the mortgaged lot subordinate to the lien of the
mortgage. They answered the bill, setting up a prior lien in favor
of the three because they had erected a party wall on and along the
north line of the lot, under a party wall agreement made prior to
the mortgage, and of which the mortgagee at all times had notice,
and alleging that if the mortgage was superior in lien, then the
residue of the lot, not covered by the party wall, should be first
sold to satisfy the mortgage. Issue was joined on the answer. In
the taking of proofs, the plaintiff put in evidence a party wall
agreement made June 4, 1866, between Scammon and one Smith, by
which it appears that Smith owned lot 4, next north of lot 5, and
gave permission to Scammon to build one-half of the north wall of a
building he was to erect on lot 5, to the northward of the dividing
line between the two lots, and that Smith, on paying to Scammon
one-half of the value of the wall, was to be entitled to use the
north half of it as a party wall. On the 25th of February, 1867,
Scammon and his daughters and Smith executed a supplemental paper,
stating that the contemplated wall had been erected, and agreeing
that such wall was to be considered as built on the dividing line
between lots 4 and 5, and that the center of such wall was such
dividing line. There is not in the record any other testimony about
any party wall or the strip of land, and none to support the
Andrews answer, and there is no mention of the strip in either of
the reports of the master. The decree, however, finds that the
three Andrews defendants own in fee, subject to the lien of the
mortgage, by title derived from Scammon and his two daughters, the
strip of land before referred to, describing it as a strip from off
the north side of lot 5, six and five-eights inches wide in front
and nine and seven-eighths inches in the rear, and the depth of the
lot. It also excepts that strip in declaring that the mortgage is a
first lien on the life estate of Scammon in the north two-thirds of
the lot, and in declaring that it is a first lien on the estate in
remainder of the daughters therein, and declares that the
$12,678.10 is a valid and first lien on that strip, and excepts the
strip from the estate in remainder, and from the life estate, in
describing the premises
Page 117 U. S. 648
to be sold, and directs it to be sold by itself after those
estates are sold.
The appellant objects to the adjudication in regard to the strip
on the ground that there is not in the record either pleading or
evidence to support it. This is true. The decree must therefore be
reversed in that respect. It is accordingly
Affirmed, except as to the strip, and reversed as to that,
and the case is remanded to the circuit court, with a direction to
strike out of the decree everything relating to the strip. The
costs of the appeal are awarded to the daughters.