MCAUSLAND v. PUNDT. .executors, adminstrators and assigns, doth hereby covenant and agree to and with the said party of the second part, his heirs, executors, administrators and assigns, that he does sell and will convey, as hereinafter named, to the said party of the second part, that certain piece or parcel of land situated in the county of Douglass, in the city of Omaha, and Territory of Nebraska, known and described as follows, to wit: the west twenty-two feet (22) of lot five (5) in block one hundred (104), as surveyed by A. D. Jones, and lithographed by the Council Bluffs and Nebraska Ferry Company. In consideration of the above agreement, the said party of the second part, does give to the said party of the first part his three (3) several promissory notes, each for the sum of one hundred and sixty-six dollars and sixty-seven cents, bearing interest at the rate of 10 per cent per annum, said interest payable annually; said promissory notes being Nos. 1, 2 and 3. Number one running one year, number two running two years, and number three, three years from date. And it is further convenanted and agreed, by and between the parties aforesaid, that on the payment of the three several promissory notes before named, at the time and manner above mentioned and specified, on the part of the said party of the second part, that the said party of the first part, shall execute a good and sufficient, deed of warranty of the within described premises, free and discharged from all incumbrances, to the said party of the second part, his heirs or asigns. And it is further agreed, that in case of failure of the said party of the first part, to make the deed as herein named, the said party of the second part, shall collect of the said party of the first part, his heirs, executors or administrators, the sum of two thousand dollars as damages; and the said party of the second part agrees to pay all taxes assessed upon said premises, as long as he shall hold posession, or any other person holding under or through him. And the said party of the second part, hereby further MCAUSLAND v. Pundt. agrees, that in case he shall fail to perform any of his agree ments herein mentioned, then the said party of the first part or his asigns, may declare all the remaining payments due; and the said party of the first part, his heirs, executors, administrators, or assigns, may then foreclose this article as a mortgage, and this article shall be construed as a mortgage by all courts in this Territory in case of foreclosure, as witness our hands the day and year, first above written. JOHN HUGHES, ALEXANDER MCAUSLAND. In the presence of The undersigned, Sahler & Co., a firm composed of John H. Sahler and John Hughes, of Omaha city, Douglass county, Nebraska Territory, for and in consideration of one dollar to them in hand paid, the receipt whereof is hereby acknowledged, do hereby guarantee all the agreements of the said party of the first part named in the annexed contract. Witness our hands this 19th day of July, A. D., SAHLER & CO. 1859. In presence of C. H. DEFOREST, JR. The following deed was also considered material to the rights of the parties : Know all men by these presents, that we, John Hughes and Eliza Hughes, of Lime Grove, near Manchester, England, in consideration of the sum of eight hundred dollars, in hand paid by John I. Redick and Clinton Briggs, Omaha, Nebraska, do hereby sell and convey and quit claim unto said John I. Redick and Clinton Briggs, all our right, title and interest in and to the following real and personal property, situated and being in the Territory of Nebraska, to wit. The east twenty-two (22) feet of lot three (3) in blocks MCAUSLAND v. Pundt. one hundred and thirty-six, the west forty-four (44) feet of lot five (5) in block one hundred and twenty-one (121), the south half of lot eight (8) in block one hundred and fifteen (115), lot six (6) in block seventy-four (74), lot six (6) in block one hundred and fifty (150), lot seven (7) in block twenty-two (22), lot six in block one hundred and seventyone (171), lot seven (7) in block eighty-three (83), lots six (6) and seven (7) in block seven (7), all of which lots are situated in the city of Omaha, in Douglas county, Nebraska, and also the west fractional part of the southeast quarter, the southeast fractional part of the northeast quarter, and an east fractional part of the northwest quarter of section five (5) in township thirteen (13) north, range ten (10) east of the sixth principal meridian, and also all other real or personal property which we, or either of us, may have any legal or equitable interest in, in the Territory of Nebraska and we do also sell and assign to said Redick and Briggs, all the moneys, rights and credits of every description belonging to us or either of us, or due to us or either of us, from any person or persons or company in said Territory, to have and to hold the same unto the said Redick and Briggs, and to their heirs and assigns forever. Witness our hands and seals the 10th day of July, 1862. [L. S.] In presence of HENRY W. LORD, JOHN HUGHES. ELIZA HUGHES. [L. 8.] From the decree dismissing the bill, the complainants, in whose behalf the cause had, after the death of their father, the original complainant, been revived, appealed to this court. J. M. Woolworth, for appellant. MCAUSLAND v. PUNDT. I. Performance of the agreement between Hughes and McAusland would be decreed by the court, if they were the only parties to the controversy. 1. The fact that Hughes did not hold the title to the lot, which he agreed to convey with warranty, and whether he ever could get it being contingent upon the suit between Green and Jones, excused McAusland from paying his notes at their maturity.-Taylor v. Longworth, 14 Peters, 172, 176. 2. The taking from Hughes of the guarantee of Sahler & Co., is not a circumstance indicative of the purposes of the parties, for it was not peculiar to that, but appears also in the other contracts. 3. The contract fixed the rights of McAusland and Hughes, as those of mortgagor and mortgagee, which required a suit of foreclosure, to cut off the rights of the former. The maxim is, Modus et conventio vincunt legem.— Webster v. Hoban, 7 Cranch, 399; 3 Parsons on Contr. 377, n. (7.) II. Redick and Briggs being the grantees and assignees of Hughes, are as much bound by his obligation to convey as he himself is.-2 Story's Eq. Jr. Sec. 782-3; Champion v. Brown, 6 John. ch. 405-6. 1. They took with notice, and are therefore bound.Fitzpatrick v. Beatty, 1 Gilman, 454, 468; Ferry v. Pfieffer, 18 Wis. 510, 19. 2. They took by assignment from Hughes, instead of by absolute conveyance. 3. And it is not necessary to show any privity between them and us.-2 Story's Eq. Jr. Sec. 784, 90, 1212, 13; Laverty v. Moore, 33 N. Y. 658, 664. III. From the point of their first connection with either lot, to the bringing of this suit, Redick and Briggs proceeded as if executing the three several contracts. MCAUSLAND . Pundt. 1. This appears, if regard be had to the order of the transactions to which they were parties. (1). They first became connected with the property, by the conveyance and assignment to them by Hughes, in 1862, which was pending the suit between Jones and Green. (2). They took no farther step during the pendency of that suit, because until able to make a good title, Jones could not, by the terms of this contract, be compelled to convey. (3). When the difficulty in his title was, by the reversal of the decree, avoided, they executed the contract between Hughes and him. This was the next step which they were, by the circumstances, compelled to take. Until then, they could not call on Pundt and Koenig for performance of the contract, with those vendees made by Hughes and by him assigned to them. (4). Having taken all the necessary steps preliminary thereto, they now execute the contract between Hughes, and Pundt, and Koenig. (5). And thereby acquiring the premises in question, they call on the original complainant in this suit, to surrender them. 2. The same still farther appears, from the fact that they took from Hughes the instrument proper in such cases, did precisely what he was bound to do, and thereby acquired precisely the advantages to which he, under the several contracts, was entitled. 3. They admit in their answer, and it is clearly in proof, that they settled their conflicting claims between themselves and Pundt and Koenig, with a view to these several contracts, and the reciprocal obligations of the parties thereto. IV. The sale under the decree of the lot in block 121 to Green, and by him to Pundt and Koenig, is not an element |