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Page Smith v. Parman (Kan.).....

33 State v. Great Northern R. Co. (Wash.). . 546 Smith Estate y, J. M. Dunn Auto Co. (Cal. State, Harkins v. (Okl. Cr. App.). 469 App.) 415 State v. Hay (Utah).

721 Smyth, Jones v. (Okl.) 785 State v. Hite (N. M.)

419 Snohomish County, Northern Pac. R. Co. State, Holden v. (Okl. Cr. App.)

977 v. (Wash.) 878 State, Holden v. (Okl. Cr. App.)

978 Snohomish Logging Co.,

Thayer

State v. Home Telephone & Telegraph Co. (Wash.) 552 of Spokane (Wash.)

899 Snook, Warner V._(Kan.) 521 State v. Hurn (Wash.).

.1147 Snow Mountain Water & Power Co., State v. Independence Gas Co., two cases Holmes v. (Cal. App.).

178
(Kan.)

713 Snyder v. Hamilton Nat. Bank (Colo.)..1069 State v. Johnson (N. M.).

189 Snyder, State v. (Nev.).. 364 State, Keddington v. (Ariz.)

273 Snyder Co-op. Äss'n v. Brown (Oki.). ... 789 State' v. Kelly (Wash.).

.1175 Soper v. Dominguez (Cal.).. 586 State, Lebrecht v. (Okl.)

65 Southern California Iron & Steel Co. v.

State v. McCurtain (Utah)

481 Maier (Cal. App.).. 615 State v. McFarlin (Ney.).

371 Southern Pac. Co., Bliss v. (Cal. App.).. 760 State y. Martin (Wash.)

349 Southern Pac. Co., Chung Sing v. (Cal.)1103 State, Meigs y. (Okl. Cr. App.)

974 Southern Pac. Co., Dixon v. (Nev.). 368 State, Morgan v., two cases (Okl. Cr. App.) 974 Southern Pac. Co., Drouillard v. (Cal. State v. Moss (N. M.).

199 App.) 405 State v. Murphy (Wash.).

544 Southern Pac. Co., Jesus Maria Rancho State v. Muskogee (Okl.).

796 v. (Cal. App.). 183 State v. Musselman '(Wash.).

346 Southern Pac. Co., Knight v. (Utah).... 689 State, One Cadillac Automobile v. (Okl.) 62 Southern Pac. Co., Stool v. (Or.).

101 State, One Moon Automobile v. (Okì.)... 66 Southwestern Surety Ins. Co. v. Capitol State v. One Packard Automobile (Okl.).. 66 State Bank (Okl.)..

956

State v. Pacific Wall Paper & Paint Co. Southwestern Surety Ins. Co. v. Dietrich

(Nev.)

380 (Okl.) 51 State v. Payne (Okl. Cr. App.).

.1096 Southwestern Surety Ins. Co. v. King

State v. Payne (Okl. Cr. App.)

.1098 (Okl.)

74
State v. Pierson (Wash.)...

236 Souza v. First Nat. Bank (Cal. App.) 175

State v. Postal Telegraph-Cable Co. of Spark's Estate, In re (Wash.)..

545
Washington (Wash.)

GO2 Spencer, Piluso v. (Cal. App.). 412 State v. Pruett (N. M.).

. 1044 Spokane International R. Co., Armstrong State V. Public Service Commission of v. (Wash.).....

578
Washington (Wash.)

890 Spokane Pav. & Const. Co., Aberdeen

State v. Raithel (N. M.).

.1137 State Bank v. (Wash.). 827 State v. Scott (Wash.):

234 Spokane Taxicab Co. v. White (Wash.) : 233 State, Sheek v. (Ariz.)

662 Spokane & I. R. Co., French v. (Wash.) 1159 State v. Snyder (Nev.).

364 Springer, Phillips v. (Kan.). 1017

1073 Springfield Fire & Marine Ins. Co. v. First

State, State Nat. Bank v. (Okl.). Nat. Bank (Okl.)..

652

State v. Superior Court for King County (Wash.)

254 Stanley, City of Cushing : (Okl.).

628 Stanton v. Zercher (Wash.).

559

State v. Superior Court for King County State, Azbill v. (Ariz.). 658

257

(Wash.) State v. Baker, two cases (Okl.).

1088

State v. Superior Court of Pierce County State v. Balles (N. M.).

196
(Wash.)

826 State, Becknell v. (Okl.).

.1094 State v. Superior Court of Washington for State v. Behringer (Ariz.). 660 King County (Wash.)

336 State v. Bell (Wash.). 221 State v. Taylor (Wash.).

217 State v. Bond (Nev.). 367 State v. Thomas (Wash.).

650 State, Brice v. (Oki. Cr. App.)

978
State v. Van Ylack (Wash.)

563 State, Brown v. (Okl. Cr. App.) .1098 State, Vaughan v. (Okl. Cr. App.)

975 State, Bryce v. (Okl. Cr. App.) 976 State v. Wallace (Wash.).

581 State v. Butte (Mont.).

134 State, Westbrook v. (Okl. Cr. App.) 464 State Certain Intoxicating Liquors

State v. West Pub. Co. (Utah)..

678 (Utah) .1050 State v. Wheeler (Wash.).

225 State v. Clift (Kan.). 537 State v. Will (Kan.).

1003 State, Cooper v. (Ariz.). 276 State v. Wilson (Kan.),

41 State v. De Weese (Utah),

290 State Industrial Commission, Davis State, Dickinson v. (Okl.). 791 (Okl.)

638 State, Dickinson v. (Okl.)

792 State Nat. Bank v. State (Okl.). ..1073 State v. District Court of First Judicial Stein, Farr v. (Mont.)

. 135 Dist. in and for Lewis and Clark County Stevens v. Blocker (Kan.)

1025 (Mont.) 1030 Stevens V. Keegan (Kan.)

1025 State v. District Court of Second Judicial Stevens v. Mulryan (Kan.).

1025 Dist. in and for Silver Bow County Stevens County, Crooks v. (Wash.) 1158 (Mont.) 539 Stewart, Haight v. (Cal. App.)

769 State v. District Court of Fourteenth Judi- Stiltner, Roberts v. (Wash.).

738 cial Dist. in and for Wheatland County Stimson Co., Hills v. (Wash.)

.1181 (Mont.)

V.

540 Stoll, Verdier v. (Cal. App.). State v. District Court of Seventeenth Ju- Stool v. Southern Pac. Co. (Or.).

101 dicial Dist. in and for Phillips County Stout, Hartford v. (Wash.).

1168 (Mont.)

329 Stow v. Superior Court of California in and State v. Duckett (N. M.). 189 for Alameda County (Cal.).

598 State v. Duncan (Wash.) 915 Strickland v. Palmer (Okl.).

932 State, Dunn v. (Okl. Cr. App.) 463 Strom, Petition of (Wash.).

247 State v. Everett (Wash.).

752 Strong v. Butte Central & Boston Copper State v. Farmers' State Bank (Mont.).. 130 Corp. (Mont.)..

. 1033 State v. Field (N. M.). .1136 Stults, Tyner y. Wash.)

850 State v. Floyd (N. M.) 188 Sugg v. Gridley (Wasb.).

545 State v. Ford (Or.)

802 Superior Court for King County, State v.

. 1127

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943

Page

Page Superior Court in and for Santa Barbara Vayra, Huntington v. (Cal. App.).....

166 County, Brandes v. (Cal. 'App.).. .1130 Vawter, Zane v. (Kan.)

37 Superior Court of California in and for Venice 'Inv. Co., Fergus v. (Cál. App.)... 396 Alameda County, Stow v. (Cal.): 598 Verdier v. Stoll (Cal. App.).

. 1127 Superior Court of King County, State v. Vogt" v.' Marshall-Wells Hardware' Co. (Wash.) 257 (Or.)

123 Superior Court of Pierce County, State Von Marcard, Flood v. (Wash.).

884 v. (Wash.). 826 Votaw, Marsh v. (Kan.).

30 Superior Court of Washington för King Vuich, Bookhout v. (Wash.)

740 County, State v. (Wash.).

336 Susman v. Young Men's Christian Ass'n Waddell, In re (Mont.).

1036 of Seattle (Wash.).

554 Waggoner Bank & Trust Co. v. Doak Sweinhart v. Plant Inv. Co. (Cal.). 386 (Okl.)

61 Swigart, Dallas v. (N. M.).

416 Wagner, Atchison, T. & S. F. R. Co. v. (Kan.)

519 Tacoma Ass'n of Credit Men v. Lyons Wah-Tsa-e-o-she v. Webster (Okl.).. 78 (Wash.) 823 Walkes, Beers v. (Wash.).

861 Tacoma Eastern R. Co., Hubbard v. Walker' v. Hinton (Okl.).

73 (Wash.) 222 Wallace, State* v. "(Washi.).

581 Tacoma Mill Co. v. Northern Pac. R. Co. Walsh v. Alaska S. S. Co. (Wash.).

269 (Wash.) 812 Walters, Kramer v. (Kan.).

..1013 Taylor v. Farmers' & Bankers' Life Ins. Walters v. United Grocery Co. (Utah)... 473 Co. (Kan.).

35 Walton Trust Co., Gwinnup v. (Okl.).. 936 Taylor, Staté v. (Wash.). 217 Warner v. Snook (Kan.).

521 Teufel, Denver & R. G. R. Co. v. (Colo.)..1060 Wasco County v. New England Equitable Thayer v. Snohomish Logging Co. (Wash.) 552 Ins. Co. (Or.)....

126 Thomas, Nelson v. (Cal.App.).

398 Washburn v. Board of Com’rs of Shawnee Thomas v. Peebler (Or.).....

648
County (Kan.)..

997 Thomas, State y. (Wash.).

650 Washington Refining Co., City of Seattle Thompson y. Millikin (Kan.).

534
v. (Wash.)

..1161 Thompson v. Union Traction Co. (Kan.) 990 Washington Tool & Hardware Co., Rust Thorne, J. I. Case Plow Works v. (Kan.) 38 v. (Wash.)

846 Thourot's Estate, In re (Utah).

697 | Washington Water Power Co., Griffith v. Thurmond, Callahan v. (Okl.).

798
(Wash.)

822 Tillamook City, Curtis v. (Or.).

122 Waters of_Umatillą River, in re (Or.).... 97 Tilley, Furlong V. (Utah).. 676 Watkins, Turner v. (Cal. App.).

620 Tipton, Worthington v. (N. M.).. .1018 Weaver, Skinner v. (Kan.).

...1024 Tietjen v. McCoy (N. M.).. ..1042 | Webb, Smeltzer v. (Wash.).

750 Tietjen v. McCoy (N. M.).

.1144 Webster, Bank of Commerce v. (Okl.) 942 Title Guaranty & Surety Co., Mills v. Webster, Bank of Commerce v. (Okl.). (Wash.) 248 Webster, People v. (Cal. App.).

768 Tolleson, Berry v. (Okl.)..

630 Webster, Wah-Tsa-e-o-she v. (Okl.). 78 Tolt Land Co., McDermott v. (Wash.)... 207 Weister, Abraham v. (Kan.).

998 Tom Poste, Inc., Duncan v. (Cal. App.).. 163 Wells, In re (Cal. App.).

93 Town of Calistoga v. Adams (Cal. App.) 624 Wertz, Ross v. (Okl.).

968 Trimble v. Collins (Colo.).. 421 Wessinger, Gress v. (Or.).

495 Trout, Hinton v. (Okl.).

450 Westbrook v. State (Okl. Cr. App.) 464 Tubb, Borgeson v. (Mont.).

326 Western Casualty & Guaranty Ins. Co. v. Tusfree, Citizens' Trust & Savings Bank Capitol State Bank (Okl.).

954 V. (Cal.)...

586 Western Investment & Land Co. v. First Turner, Comanche Light & Power Co. v. Nat. Bank (Colo.)..

6 (Okl.)

792 Western Union Tel. Co., Bentley V. Turner v. Hartog (Or.).

484
(Wash.)

.1172 Turner v. Watkins (Cal. App.). 620 West Pub. Co., State v. (Utah).

678 Turner's Estate, In re (Cal.). 759 Wheeler, State v. (Wash.).

225 Tyler v. Bier (Or.).

112
Whitaker v. Ellis (Wash.).

881 Tyner v. Stults (Wash.) 850 White, Cushing v. (Wasb.).

229 White v. Hagbery (Mont.)

.1034 Uhrich, Lombard v. (Kan.).

32 White, Spokane Taxicab Co. v. (Wash.).. 233 Union Hollywood Water Co. v. Los Ange Whitefield, St. Louis & S. F. R. Co. v. les (Cal.) 983 (Okl.)

637 Union Mach. Co. v. Chicago Bonding & Whiting-Mead Commercial Co. v. Bayside Surety Co. (Cal. App.).

Land Co. (Cal.).

598 Union Pac. R. Co., Lynch v. (Colo.)....1061 Wichita Falls & N. W. R. Co. v. D. CawUnion Savings & Trust Co. of Seattle v. ley Co. (Okl.)...

70 Manney (Wash.)... 251 Wickliffe, Anderson v. (Cal.).

381 Union State Bank v. Mueller (Okl.). 650 Wilcox, Anderson v. (Cal. App.)

398 Union Traction Co., Thompson v. (Kan.).. 990 Wilcox, Edmonds v. (Cal.)...

1101 Union Trust Co., Butler v. (Cal.). 601 Wilhite v. Cruce (Okl.)

962 Union Trust Co. v. Hendrickson (Okl.). 440 Wilkes, Lusk v. (Okl.).

929 Union Trust Co. of San Francisco, Cali Wilkinson, Kies v. (Wash.).

351 fornia Gas & Electric Corp. v. (Cal.).. 146 Will, State v. (Kan.).

.1003 United Artisans v. Cronise (Or.). 109 Willapa Power Co., City of Raymond v. United Grocery Co., Walters v. (Utah). 473 (Wash.)

.1176 United Railroads of San Francisco, Graff Willardson v. Willardson (Utah).

719 v. (Cal.). 603 Williams v. Youtz (Cal.).

383 United States Nat. Bank Shupak Williamson v. Holloway (Okl.).

44 (Mont.)

324 Williamson v. Salt Lake &0. R. Co. Unwin ý. Barstow-San Antonio Oil Co. (Utah)

680 (Cal. App.)... 622 Willis v. Willis (Utah).

685 Wilson v. Joseph (Wash.).

745 Van Vlack, State v. (Wash.). 563 Wilson, People v. (Cal. App.).

1116 Vashon Nav. Co., Carlson v. (Wash.). 860 Wilson, State v. (Kan.).

41 Vaughan v. State (Okl. Cr. App.). ..... 975 Winbigler v. Clift (Kan.).

537

...1113

V.

.

Page

Page Withington v. Gypsy Oil Co. (Okl.)... 634 Yett v. Oregon Surety & Casualty Co. Woldson v. Richmond Mining, Milling & (Or.)

486 Reducing Co. (Wash.)....

.1162 Young Men's Christian Ass'n of Seattle, Woodbury Lumber Co.,

554 Douglass v.

Susman v. (Wash.)... (Wash.)

906 Yuma County v. Maricopa County (Ariz.) 276 Works, Incorporated Town of Comanche Youtz, Williams v. (Cal.)..

383 v. (Okl.)..

60 Worthington v. Tipton (N. M.) ..1048 Zane v. Vawter (Kan.).

37 Wright v. Seattle Grocery Co. (Wash.).. 345 | Zercher, Stanton v. (Wash.).

559

REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

CALIFORNIA.
Jones v. Southern Pac. Co., 168 P. 586. Re-

hearing denied by Supreme Court.

Gay v. District Court of Tenth Judicial Dist.
in and for Clark County, 171 P. 156.

OREGON.
Enneberg v. State Industrial Accident Com-

mission, 171 P. 765.
Gable v. Armstrong, 171 P. 190.
Gile v. Lasselle, 171 P. 741.
Schmid v. Thorsen, 170 P. 930.

NEVADA.

De Remer v. Anderson, 169 P. 737.
Forsyth v. Heward, 170 P. 21.

THE

PACIFIC REPORTER

VOLUME 172

(64 Colo. 388)

whom the defendant in error had a judg. FIRST NAT. BANK OF IT. COLLINS v. ment. The agreed record on error discloses SHAFER et al. (No. 8989.)

that on June 4, 1915, Balmer was a farm (Supreme Court of Colorado. April 1, 1918.) tenant of one Signor, at which time they

gave a joint note to the plaintiff in error for 1. TRIAL O 368 AGREED STATEMENT OF

$1,300, due December 4th, following, securFACTS-MATTERS NOT INCLUDED.

In suit tried on an agreed statement of ing it by a chattel mortgage on certain stock, facts, one of the parties desiring to rely on a machinery, and crops then growing on the contract between the parties must set out the Signor place; that on November 4, 1915, contract in the statement, or the evidence in re Balmer and Signor executed to plaintif in spect to it from which its existence can be determined by the court.

error another note for $340, due November 2. CHATTEL MORTGAGES em 200 - FRAUD OF 20th, same year, and secured it by chattel

MORTGAGEE IN PERMITTING CONVERSION OF mortgage on that portion of the same propSECURITY.

erty not then disposed of; that on DecemWhere chattel mortgagee permitted and aid- ber the 27th, following, Balmer turned over ed mortgagor in selling sufficient of the mortgaged property to pay the mortgage debt, and in to plaintiff in error bank the stock and maconverting proceeds to his own use, and took chinery covered by the mortgages; that on possession of remainder of the property, a fraud was perpetrated on the mortgagor's' general January 6, 1916, the bank sold it at public creditors, and the mortgage was void as to a sale for the sum of $1,007 net. The testijudgment creditor of the mortgagor who had an mony of Nelson, the bank's cashier, is to the execution outstanding at the time of the sale effect that, after crediting all amounts receivof such remaining property under the mortgage, and the proceeds of such sale was subject to ed from Balmer, he was still indebted to the garnishment to satisfy such judgment.

bank on the note $147. It is admitted that 3. CHATTEL MORTGAGES O179FRAUD AS TO the garnishee summons was served on Nelson

GENERAL CREDITOR EFFECT OF TAKING immediately at the close of said public sale, POSSESSION.

Where the acts of both mortgagor and mort the proceeds being in his possession, but that gagee have been such as to unlawfully defeat the no indorsement of them had been made on rights of the general creditors of the mortgagor the notes. What Signor's interest in the in the collection of their debts, thereby perpe- matter was is not disclosed. As the briefs trating a fraud, the mortgagee cannot avoid the treat the debt evidenced by the notes and effect of his acts by taking possession under the mortgage.

the property covered by the mortgages as White, Garrigues, and Bailey, JJ., dissenting. that of Balmer alone, we shall acquiesce in

this view of it. En Banc. Error to Weld County Court; The record shows that in August, SeptemHerbert M. Baker, Judge.

ber, October, November, and December, 1915, Action by John E. Shafer and others, do- Balmer sold to one Ogden $639.25 worth of ing business as the Shafer Hardware Com- oats and potatoes, which were covered by pany, against Peter Balmer, in which the the first mortgage, and what was remaining First National Bank of Ft. Collins was gar- when it was executed by the second; that he nished. Upon appeal to the county court received in payment for these sales nine from a judgment of the justice court there checks for $549.74; that the balance, $89.51, was judgment against garnishee, and it was used in the purchase of sacks, coal, and brings error. Affirmed.

the rent of sacks; that all of these checks Lee & Shaw, of Ft. Collins, for plaintiff in but four, for a total of $94.73, went through error. John Paul Lee, of Eaton, for defend- plaintiff in error's bank; that in one of them ants in error.

for $108.90 the bank's name was inserted as

one of the payees; that a sugar company HILL, C. J. This case, instituted before a gave checks for beets covered by these mortjustice of the peace, was, upon appeal, tried gages as follows: One for $431.45 payable to the court upon an agreed statement of to the bank, Balmer, and Signor; one for facts. The judgment was against the plain-beet seed for $150 (the payee in this check is tiff in error bank, who, upon a traverse of not shown by the record); one to W. H. its answer to a garnishee summons, was held Barnes for $13.41; one to M. C. Andrews of to be the debtor of Peter Balmer, against '$119.77; and one to the bank, Balmer, and

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

172 P.-1

Signor for $93.90; two others to the parties and apply the proceeds thereon, is not suslast named for $838.39. Balmer testified tained by the record. While the agreed statethat none of the $431.45 check went to the ment of facts is not very clear on several bank to pay off his notes, but that he was things, the deductions to be gathered from it given permission to use this money to pay on this are that the bank took possession for hauling of beets and pay the help, pro- with the consent of Balmer under its purporttecting the bank's interest in the crops; that ed chattel mortgages, and that it was purhe was not clear as to the amounts paid out, porting to sell the property thereunder; othbut testified to items as follows, beet haul. erwise why insert in the sale notice the words ing $75, threshing $116, cutting grain $40, "First National Bank of Ft. Collins, mortfor labor $93.90; that he paid $45 to a man gagee." Tht record is silent as to any exin Ault on an old debt of his, $25 to. Barnes press declarations concerning such an agreefor a cultivator, $15 for a hog, and $45 to an ment. If it had been made, it should have implement company; that he fed most of the been inserted in the agreed statement of facts wheat and alfalfa covered by the mortgages by appropriate language, and not left uncerto his hogs; that he had given the bank a tain to be urged by deductions. If such rough estimate of the amounts paid out; agreement could not be secured, then the testhat so far as he knew the bank had no timony concerning it should have been proknowledge that the funds were being used duced and set forth in the record. This was for other purposes than to save crops, ex- not attempted. From the record before us, cept that he told Nelson of purchasing culti- we are of opinion that there was no error in vator from Barnes and feeding some of the the ruling as made on this subject. wheat and alfalfa to his hogs. Nelson ad [2] The record contains sufficient to sustain mitted that he gave Balmer permission to findings that Balmer gave to the bank two use some of the money, but stated that it notes for $1,640 and interest and chattel was for the sole purpose of harvesting the mortgages to secure each on his stock, equipcrops; that he had never asked him for pay- ment, farming implements, and crops; that ment of any settlement.

thereafter and during what is termed the life The record shows that early in December, of the mortgages, it allowed Balmer to sell 1915, and before the bank took possession of about $2,286 worth of crops covered by the the property it sold, a bank at Severance had mortgages and apply the proceeds to his own secured a judgment against Balmer and gar- use, except $431.45, which the bank credited nished the sugar company, that the plaintiff upon the notes; that checks for about $1,400 in error bank paid $178 of the money receiv- received from the sales of these crops includ. ed by it from the sales of these crops to the ed the name of the bank as one of the Severance bank in satisfaction of this judg- payees; that checks for an additional sum ment; that this payment was with the con- of about $300 payable to Balmer received sent of Balmer; that the advertisement of from the sale of these crops also passed the public sale of the property was signed by through the plaintiff in error's bank; that the auctioneer, but included the language the bank knowingly permitted Balmer to oth"First National Bank of Ft. Collins, mort. erwise appropriate the most of the wheat and gagee"; that at the time of the service of the alfalfa crops covered by the mortgages. In garnishee summons upon Nelson as cashier such circumstances, we cannot agree with of the bank, the only credit indorsed on the the contention of plaintiff in error that there notes was one for $414.98, bearing date is no testimony to sustain the findings of the December 23, 1915. The judgment was trial court; that the action of the parties against the bank for $270.89, being the to the mortgages constitute a fraud against amount of the Balmer judgment in favor of the right of the judgment creditors of Balthe defendant in error. The position of the mer. The defendant in error was entitled to trial court was that the public sale of the re- its judgment as rendered. It had an execumainder of the property not theretofore sold tion or attachment outstanding against Balby Balmer was under the purported chattel mer at the time of the sale. It was looking mortgages by consent of Balmer, and not un- for something to levy upon. The bank had der any agreement between him and the bank all his property covered by the two chattel by which he turned it over to them as se- mortgages, and was not only allowing him curity for the debt, or otherwise, than a sur-to sell part of it and convert the proceeds to render of possession under the purported his own use, thereby preventing his other mortgages; that upon account of the acts of creditors from collecting their claims, but Balmer and the bank pertaining to the mort- was aiding him in such transaction by havgaged property, its disposition, etc., the mort- ing or allowing the checks received therefrom gages were void as against the attaching to include its name as payee by collecting, or creditors of Balmer.

indorsing them to him, and, instead of ap[1] The contention of the plaintiff in error plying the proceeds in payment of his debts that the property was turned over to the secured by the mortgages, it turned the mon. bank by Balmer under an agreement outside ey back to him, yet keeping the remainder of of the mortgages, that the bank was to re- the property still covered by the mortgages, ceive it as security for its debt, have it sold, I and it thus continued to so do up to the time

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