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: 33
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CARSON V. HURT
trust. Under the decree appealed from they had the benefit of all pay-
ments that had been made on the purchase price of the land embraced
in the deed of trust. They will get all to which they are entitled under
the above-quoted provision, if they are allowed to secure the release
of their land upon payment of proportional parts of the entire pur-
chase price still owing and unpaid. We are not of opinion that appel-
lee's acts in releasing other subdivisions from his liens had the effect
of a release of the subdivisions bought by the appellants, or of giving
to the latter the right to have their subdivisions released, not on the
terms prescribed by the deed of trust, but on the terms on which the
appellee, without being bound to do so, released other subdivisions.
 The notes secured by the foreclosed deed of trust provide for
the payment of an attorney's fee of 10 per cent., if placed in the hands
of an attorney or collected by suit. The only tender made by any of
the appellants before the suit was brought was of less than he was re-
quired to pay to be entitled to a release of his land. This being so, ap-
pellee had the right to bring suit for the foreclosure of his hens, and to
make the appellants defendants to that suit. The costs and attorney's
fees to which he is entitled are chargeable against any unreleased land
against which he was justified in enforcing his liens by suit. The lands
of the appellants were in that category. The appellants had not, before
the suit was brought, done that which would make appellee's enforce-
ment of his lien by suit wrongful or unjustifiable as to them. Appel-
lee did nothing that can be given the effect of forfeiting his contract
right to be allowed an attorney's fee. The appellants are not entitled to
be relieved of their proportionate part of the expense, including the
attorney's fee stipulated for, of the suit, the institution of which
against them was justified by their defaults.
[4j It is not so clearly made to appear by the record that the amount
of the secured debt found to be due was more than was actually due as
to justify the setting aside of the finding of the trial court. The rec-
ord contains a statement of evidence adduced by the opposing parties,
which their respective counsel certified was "examined and found cor-
rect." This statement was not approved by the court or judge, pursu-
ant to equity rule 75 (198 Fed. xl, 115 C. C. A. xl). Nothing in it
shows that it contained all, or the substance of all, the evidence adduc-
ed. The contrary not a pearing, it is to be presumed that the court's
findings were supported by evidence other than that which the record
on appeal discloses. Furthermore, even on the evidence which is set
out, it does not seem to be permissible to make the appellee's book en-
tries conclusive against him. The payments on the secured debt were
made by or through the 0. W. Kerr Company, the seller of the land
in parcels. It was to the interest of that company to get the benefit of
all payments made. A statement made by it not long before the suit
was brought indicated that more was unpaid on the secured debt than
the amount found to be due.
 The assignments of error made by the 12 appellants are joint
and not several. One of those assignments complains of the failure
of the court to decree on what was called a cross-bill filed by 3 of the
appellants. The sole party defendant to that so-called cross-bill was
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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/m1/48/: accessed February 24, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.