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: 30
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250 FEDERAL REPORTER
CARSON et al. v. HURT.
(Circuit Court of Appeals, Fifth Circuit. March 16 1918.)
1. MORTGAGEs 4310---PARTIAL RELEASE-INTEREST.
Where a vendor took a deed of trust for the unpaid purchase money,
which provided that the purchaser, his heirs or assigns, might obtain the
release of portions of the land upon payment of the amount due thereon
as prorated, the grantees of the purchaser, who delayed in demanding
releases, are liable for the interest accruing during the period of delay,
and cannot obtain releases on payment merely of the amount originally
2. MORTGAGES =310-PARTIAL RELEASE.
In the absence of any provision to the contrary, a mortgagee can gra-
tuitously release any of the land mortgaged without impairing his right
to enforce the mortgage against land not released; hence, where a deed
of trust for unpaid purchase money provided for the release of portions
on payment of the amount due thereon as prorated, the fact that the
vendor released some portions of the land on different terms does not
deprive him of the right to demand the full amount due on other parcels.
3. MORTGAGEs X=>581(2)-FoEcLoSU---ATTORNEY'S FEES.
Where notes for unpaid purchase money due on land and secured by
a deed of trust provided for the payment of an attorney's fee, if placed
in the hands of an attorney or collected by suit, grantees of the pur-
chaser, who made no tender before foreclosure suit of the amounts
which they were required to pay to secure the release of their lands un-
der the trust deed, are liable for the attorney's fee provided.
4. APPEAL AND ERROR :=907(4)-REVIEW-PREsUMPTION-EVIDENCE.
Where the court did not approve the statement of the evidence found
in the record, as required by equity rule 75 (198 Fed. xl, 115 C. C. A. xl),
but it is certified by counsel to be correct, but it does not show that all
evidence or substance thereof is therein contained, it is to be presumed
that the court's findings were supported by evidence other than that
which the record disclosed, though counsel had approved the statement of
the evidence as correct.
5. APPEAL AND ERROR e=1073(1)-REvERSAL--COMPLETE DETERMINATION.
Where three of the defendants to a suit to foreclose a deed of trust
filed a cross-bill to remove a cloud from their title, and the sole de-
fendant to such cross-bill disclaimed any interest and consented to the
entry of any decree desired, the failure of the court to dispose of the
cross-bill, which did not appear to have been called to its attention, does
not warrant reversal of a decree of foreclosure.
6. MORTGAGES X579-FoRECLOSURE--DECREF-MODIFICATION ON APPEAL
Where a vendor, who took back a deed of trust for the unpaid purchase
price, providing that the purchaser or his heirs or assigns might obtain
reases for any parcels not less than 640 acres upon payment of the
amount due thereon as prorated, foreclosed the deed of trust against
unreleased lands, which had been disposed of, a modification of the
decree on appeal, consented to by the vendor, so as to permit each de-
fendant, by paying a sum bearing the same porportion to the amount
decreed that his land might bear to the larger parcel foreclosed, to pre-
vent the sale of his land, is proper.
Batts, Circuit Judge, dissenting in part.
Appeal from the District Court of the United States for the North-
ern District of Texas; Edward R. Meek, Judge.
-4For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
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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., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/45/: accessed January 17, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.