The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 31

CARSON V. HURT

Bill by William Hurt against John Carson and others. From a de-
cree for complainant, defendants appeal. Modified and affirmed.
Burt J. Thompson and Alan Loth, both of Forest City, Iowa, and F.
M. Ryburn and S. H. Madden, both of Amarillo, Tex., for appellants.
Ben H. Stone, of Amarillo, Tex., for appellee.
Before WALKER and BATTS, Circuit Judges, and FOSTER, Dis-
trict Judge.
WALKER, Circuit Judge. By a deed bearing date December 3,
1906, the appellee, William Hurt, sold and conveyed to W. H. Garrett
85,844.95 acres of land in Texas at the price of $343,379.80, of which
$50,000 was paid in cash, $106,058.80 was to be paid to the holders of
a lien on all the land, to which appellee's title was subordinate, the debt
secured by that lien being assumed by appellee's vendee, and $181,321,
evidenced by the vendee's 10 notes, was secured by a vendor's lien and
by the vendee's deed of trust covering the land sold. This was a suit
by Hurt to foreclose the liens in his favor on the part of the land cov-
ered thereby which had not been released before the suit was brought.
Twelve defendants, each of whom acquired part of the unreleased land
with constructive notice of the above-mentioned liens, appeal from a
decree in favor of Hurt, which adjudged $78,935.23 to be the amount
due to him on the purchase-money notes, and decreed the foreclosure
and sale of the unreleased land.
[ 1] The deed of trust to the appellee contained the following pro-
vision :
"This conveyance in trust is made with the express agreement and under-
standing that a full release of this trust, as well as a full release of the ven-
dor's lien, will be executed and delivered to the'said W. II. Garrett, his heirs
or assigns, as to any quantity or parcel of land embraced in this convey-
ance not less than 640 acres upon payment of such part of the entire unpaid
purchase money as is prorated, owing and unpaid on the land for which such
release may be demanded."
An evident purpose of this provision was to enable the purchaser,
or any one who might succeed him in ownership, to subdivide the land
and sell parcels of it freed of the liens on the whole. The language of
the provision gave notice to any subsequent purchaser of a part of the
land that the existence of the right to have such part released from
the liens on the whole was dependent upon the payment of a pro rata
part of the entire unpaid purchase money, including as well what was
payable to the appellee's lien creditors as what was payable to himself.
When the appellants made their several purchases, not long after the
appellee's sale and conveyance, they had constructive notice of what
was required to be done to clear the land they bought of the liens cov-
ering that and other land. No one of the appellants undertook to com-
ply with the provision quoted until years after his purchase was made.
That provision may be regarded as an offer by the appellee to subse-
quent purchasers of subdivisions of not less than 640 acres of the tract
sold to release such subdivisions from the liens in favor of the appellee
upon the payment to him of a pro rata part of the entire purchase mon-
ey owing and unpaid. Evidently it was contemplated that the privi-