of Slacum v. Pomery, 6 Cranch, 221, will be that the judgment below be reversed and the case remanded, with directions that judgment be arrested. at his own risk and expense, all the materials and work necessary for the repairs of the buildings according to the plans and specifications annexed, the entrance buildings to be entirely completed and delivered within one hundred James H. McKenney, Clerk, Sup. Court, U. S. thirty days, from the date of the contract. A and twenty days, and the carpenter shop within Ordered accordingly. True copy. Test: FRANCIS A. GIBBONS, Jr. (See S. C., Reporter's ed., 200-205.) Contract, when explainable—construction of. 1. Where the language of a contract is susceptible of two meanings, the meaning of the parties may be explained by the circumstances attending the transaction. 2. Where, in a contract made to replace a government building which had been destroyed by fire, it was agreed that the foundations and brick walls, so far as uninjured, should remain, it was the duty of the United States to point out the work deemed to be sufficiently uninjured to remain, and this was performed by allowing it to stand, and by not directing it to be taken down. [No. 57.] Argued Oct. 23, 1883. Decided Nov. 12, 1883. APPEAL from the Court of Claims. The history and facts of the case appear in the opinion of the court. See, also, 15 Ct. Cl., 174. Mr. William A. Maury, Asst. Atty-Gen., for appellant: In cases where the language used by the parties to the contract is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation of the parties themselves is entitled to great, if not controlling, influence. XIX., 596; Lowber v. Bangs, 2 Wall., 737 [69 Chicago v. Sheldon, 9 Wall., 54 [76 U. S., U. S., XVII., 769]. The contract, as we have seen, expressly prohibits any recovery for extra charge for modifications, unless agreed upon by the parties. There could be no such agreement except with the concurrence of the bureau of yards and docks, the channel through which the Government became a party to the contract. gross sum was to be paid for the work on each, partial payments to be made during the progress of the work upon the certificate of the superintendent, and final payment when the work should be entirely completed, according to the plans and specifications, and to the satisfaction of the party of the second part. It was de clared in the contract that "No extra charge for modifications will be allowed, unless mutually agreed upon by the parties; and no changes or modifications mutually agreed upon by the parties to this contract shall in any way affect its validity." The specifications for the entrance buildings contained the following clause, upon which the case turns: "The foundations and the brick walls now standing, that were injured by the fire, will remain and be carried up to the height designated in the plan by new work." The contract was made in pursuance of proposals, invited by an advertisement, in which it was stated that "Persons desiring to bid must, necessarily, visit the yard and examine the present condition of the works, and can there see the plans and specifications to enable them to bid understandingly." bearing on this point are as follows: The findings of fact by the Court of Claims these buildings mentioned in the contract were "III. At the outbreak of the late rebellion, burnt, but portions of the walls were left standing. Prior to the proposals for work, an inspection of these fragmentary walls, so left portions of them deemed unfit to form a part of standing, had been made by the officers of the Government in charge of the works, and those those parts which were considered uninjured the permanent structure were taken down, and and proper to be built upon were left standing for that purpose. After the agents of the Government had prepared the walls, retaining the portion which the civil engineer of the navy yard in charge of the work supposed might be used in the new structure, the chief of the bu Hawkins v. U. S., 96 U. S., 689 [XXV., 607]; Ford v. U. S., 17 Ct. Cl., 60; Dale v. Ureau of yards and docks invited the examinaS., 14 Ct. Cl., 514. Mr. Enoch Totten, for appellee. Mr. Justice Matthews delivered the opinion of the court: The principal question in this case relates to the proper construction of a building contract between the parties, entered into May 22, 1866, the United States acting by Joseph Smith, Chief of the Bureau of Yards and Docks, under the authority of the Navy Department, for the repair of the entrance buildings and carpenter shop at the Norfolk Navy Yard, which had been destroyed by fire in 1861 at the outbreak of the civil war. The contract required the appellee to furnish, NOTE.-Oral evidence as applicable to written contracts. See note to Bradley v. Wash., etc., Steam Packet Co., 38 U. S. (13 Pet.), 89. tion of bidders by the advertisement annexed to the petition, and the claimant, by his agent, visited and saw the walls so standing. At the yard he was shown the walls by a quarterman time the claimant, by his agent, so visited the acting under the civil engineer of the yard. The claimant's agent asked if those walls were to stand. The quarterman replied that they were, so far as he knew, and that Mr. Williams, the master mason of the yard, and Mr. Worthat they were to stand. (But it does not ap rall, the civil engineer of the yard, had said pear that the quarterman was authorized to make such representations to the claimant's agent.) And the civil engineer likewise represented to the claimant's agent that the portion of the walls then standing would remain and be used in the new work. After the claimant's agent had so visited the yard and been shown the walls, the claimant made his bid. IV. After the claimant had begun work under his contract, it was discovered that a portion of the walls still standing had been so injured by the fire as to be unfit for building a superstructure thereon. Commodore Hitchcock, commanding the naval station, thereupon ordered that the walls be further razeed, and pursuant to his orders, about one third of the portion then standing was taken down by the claimant before proceeding to build. The effect of this second razeeing was that the claimant had to substitute new brick work for that so removed; and the additional cost of construction thereby thrown upon him was the sum of $4,050; and for it he has received no remuneration additional to the price named or consideration expressed in the contract. It does not appear that at the time Commodore Hitchcock ordered the walls to be further razeed the defendant's officers made any pretense or claim that the increased expense was to be borne by the claimant as work required by the contract; nor does it appear that the claimant made any objection to the taking down of the walls as ordered by Commodore Hitchcock." the duty follows to exercise it so that the contractor shall not be misled and injured. Under the circumstances in the present case, and according to the terms of the specifications, we think it was the duty of the officers acting for the United States, the right performance of which the Government assumed, to point out to the bidders the parts of the foundations and walls which were in fact so far uninjured as to enter into the new structure, and that this was actually done by dismantling and stripping the burnt building, so that upon inspection of what was left standing the proposing contractor would be able by measurement to ascertain precisely what new work he was to do and be paid for. To require him to determine the fact for himself provisionally, subject at any time before completion of the work to have his judgment reversed, and to be required in consequence to perform work which he could not and did not provide for in his estimates, would be unreasonable and unjust. The inspection invited by the advertisement was not for the purpose of assisting the contractor to determine, subject to such a condition, the question of the fitness of the standing walls to remain, but was, as we think, that he might see as part of the plan of the work what the authorized agents of The appellee claimed compensation beyond the contract price for the additional cost of construction rendered necessary by rebuilding that portion of the walls torn down by order of Com-the United States had designated as intended to modore Hitchcock. The United States contended that it was covered by the terms of his contract. In our opinion the Court of Claims committed no error in allowing the claim of the contractor. The language of the specifications is, perhaps, susceptible of two meanings. According to one, it is as if it read that "the foundations and the brick walls now standing," so far as they "were uninjured by the fire, will remain"; according to the other that "the foundations and brick walls now standing,” being such as "were uninjured by the fire, will remain." But, without going into any refinements of merely verbal interpretation, we think the meaning of the parties, explained by the circumstances attending the transaction, is sufficiently plain, and determines satisfactorily their relative rights and obligations. It must be conceded, we think, that it was intended that the old portion of the work was to remain as part of the new structure only so far as it was in fact fit to do so, having reference to the character and uses of the building, and that the United States had the right to determine the fact of fitness. It was clearly its interest to do so, in advance of bidding, because if it reserved the right to make the determination at any stage in the progress of the work, or even at the time of final acceptance on its completion, the whole risk of the contingency would be thrown upon the contractor, who could only indemnify himself by an increase in the estimate of probable cost; and the Government would thus be compelled to pay for an uncertainty which could as well be resolved in advance. The United States having a right to determine the fact, it would be reasonable, having regard merely to its own interests, to do so before letting the contract. It would be equally reasonable and just to the contractor that the decision should be made at the outset ; and as the right to make it belongs to the proprietor, remain in the permanent structure. It was the duty of the United States to point out the work deemed to be sufficiently uninjured to remain, and this was performed by allowing it to stand, and by not directing it to be taken down. We lay no stress, as the Court of Claims did not, on what was said at the time to that effect by unauthorized subordinates. The foundation and walls themselves, as left standing by authority of the proper officers, constituted under the circumstances a representation on the part of the United States that they had been adjudged to be so far uninjured by fire that they were to remain, upon the faith of which the intending contractor was entitled to rely for the purpose of estimating the probable cost of the work to be done. Judgment in favor of the appellee was rendered by the Court of Claims upon two other claims for small amounts, in respect to which we do not deem it necessary to say more than that it appears to us the allowance was proper. The defense by reason of the Statute of Limitations, also for the reasons alleged in the opinion of that court, was, in our opinion, properly overruled. The judgment of the Court of Claims is, accordingly, affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. troversy, by actual residence thereon, for a period | in 1839, and a power of attorney from Lacey sufficient to bar the action, is a conclusion of fact and wife dated April 20, 1839, to Joel Wicks. which this court cannot review, where the evidence was legally sufficient to justify it. authorizing him to sell and convey the premises was proved. It was further admitted that an original deed from Lacey and wife by Wicks, their attorney in fact, to Alva Newman, dated May 6, 1840, had been lost and it was proved that it was not in the power of the plaintiff to produce it, and that it had not been intentionally destroyed or disposed of for the purpose of introducing a copy thereof in place of the original. 2. A certified copy from the proper recorder's office, of the record of an original deed, which, by a clerical error described the land conveyed as the Southeast quarter instead of the northeast quarter of a section, is admissible with evidence to show the error, under a statute which provides that such copy may be read, with like effect as though the original 3. Testimony of witnesses who have read the original deed and a copy of its registry in a file book kept by the recorder, is admissible to prove the alleged mistake. was produced. [No. 95.] Submitted Nov. 1, 1883. Decided Nov. 12, 1883. IN ERROR to the Circuit Court of the United States for the Northern District of Illinois. The history and facts of the case appear in the opinion of the court. Messrs. B. C.Cook and Charles W. Needham, for plaintiffs in error. The plaintiff below then offered in evidence a certified copy from the proper recorder's office, of the record of said original deed, which, however, described the land conveyed as the southeast quarter of section twenty-nine, etc., instead of the northeast quarter of that section; but counsel for the plaintiff stated in connection with the offer that there would be offered other evidence tending to show that there was a cler Messrs. Wm. Burry and Van H. Higgins, ical error in the description of the land as enfor defendant in error. Mr. Justice Matthews delivered the opinion of the court: This was an action of ejectment brought by the defendant in error against the plaintiffs in error to recover the title and possession of a tract of land in Grundy County, Illinois, described as the northeast quarter of section twenty-nine (29), in township thirty-two (32) north of the base line, and in range eight (8) east of the third principal meridian. By stipulation, the intervention of a jury was waived by the parties, and the cause was submitted upon the evidence to the circuit court. One of the defenses relied on was the Statute of Limitations of Illinois, being section 4, chapter 83, of the Revised Statutes of that State, providing that possession for seven years, by actual residence thereon by any person having a connected title in law or equity, deducible of record from the State or the United States, etc., should be a bar to an action brought for the recovery of lands, etc. Evidence was introduced on the part of the defendant below, the ancestor of the plaintiffs in error, tending to prove, as was claimed, that he had possessed the premises in controversy, by actual residence, for seven years next preceding the commencement of the action; but the finding of the court was that he had not been possessed by actual residence thereon, of the land in controversy, for that period. This finding although excepted to and alleged as error, is a conclusion of fact which we cannot review. No exceptions appear on the record to the rulings of the court, upon any questions relating to the evidence upon this point and it cannot be claimed that the evidence, as stated in the bill of exceptions, was not legally sufficient to justify the conclusion reached by the court. No error in law can, therefore, be predicated of this conclusion of fact. On the trial it was admitted that Ibzan Lacey, the common source of title, derived title to the premises in controversy from the United States NOTE.-Evidence of lost paper and secondary evidence of its contents. See note to Bouldin v. Massie, 20 U. S. (7 Wheat.), 122. Effect of refusal to produce or destruction of paper. See note to Hanson v. Eustace, 43 U. S. (2 How.), 653. tered upon the record and contained in the copy, and that it should be the northeast instead of the southeast quarter of the section. To the introduction of this certified copy, objection was made, because it did not describe the land in controversy and because no evidence was admissible to prove and correct any alleged mistake. The ground of this objection is stated to be that the Statute of Illinois, Laws, 1861, p. 174, sec. 1, in force at the time authorizing the record of a deed or a certified transcript from the record, to be used as evidence on a trial in place of a lost original, provided that it might be read in evidence "With like effect as though the original of such deed, conveyance or other writing was produced and read in evidence;" and that as, in this case, if the original had been produced, no evidence would be admitted to prove and correct the alleged mistake in the description of the premises conveyed, none can be admitted to prove and correct such a mistake in the record or transcript. The court overruled the objection and admitted the certified copy of the deed in evidence, reserving the question upon the subsequent evidence to be offered, for the purpose of proving and correcting the alleged mistake. Such evidence was, in the further progress of the trial, admitted, on which, as a conclusion of fact, the court found that the land actually described in the lost deed was that in controversy; and thereon judgment was given for the plaintiff below. Exceptions were taken to the rulings of the court admitting the evidence subsequently offered as to the mistake in the description, upon the ground of its competency, which will be hereafter considered. The general question raised by the exception to the introduction of the certified copy from the record, is whether evidence of any description is admissible for such a purpose. The ruling of the circuit court on this point was correct. The language of the statute was intended merely to declare that the record of a deed or a transcript from the record, though s copy only and, therefore, in its nature merely secondary evidence, should nevertheless have the same effect, when competent as evidence st all, as the original itself, if it had been produced, upon the determination of the issues to testimony of certain persons tending to prove that they had seen the original deed, and that it described the land conveyed as identical with that in controversy; second, a certified copy from an entry or file book kept by the Recorder of La Salle County, in which the land was situate at the time the conveyance was made by the attorney of Lacey to Newman, of a memorandum made by the recorder, showing the date of the receipt of the deed for record, the names of the grantor and grantee, the hour of its receipt, the nature of the conveyance, the date of its execution, and the location of the land conveyed, under which head the premises are described as the "N. E. 1 S. 29, T. 32 N., R. 8 E. 3d P. M.;" third, a transcript from the landoffice at Springfield, Illinois, in which office was contained the records of the entry of the land in controversy, showing Jeddiah Wooley entered the N. E. † 29, 32, 8, on August 8th, 1835, and that he did not enter the S. E. 1 of said section; also a receipt from the land-office at Chicago, Illinois, in which office the land in controversy was sold, dated August 8, 1835, for $200 from Jeddiah Wooley, Jr., in full payment of the N. E. sec. 29, town. 32 N., R. 8 east of 3d principal meridian, being the land in controversy, upon which receipt was a memorandum indorsed in the handwriting of Joel Wicks, who was dead at the time of the trial, as follows: "Sold this to Alva Newman, May 6, 1840." But it is recited in the bill of exceptions that the court did not decide that the last mentioned memorandum and a memorandum on the copy of the deed of May 6, 1840, from Lacey to Newman, that "this land was entered by Jeddiah Wooley, August 8, 1835," were either of them competent evidence. be tried. It was not intended to declare that the record or a copy from it should, in law, be an original instrument for all purposes. The presumption is that, as public officers generally perform their prescribed duties accurately, the record and all certified transcripts from it will be true copies of the original; but they are none the less copies on that account and are made evidence only in lieu of the original, and on the grounds on which secondary evidence is permitted to be given. And there is nothing in the statute, either expressed or implied, which forbids the party from showing, by extrinsic proof, otherwise legitimate, what the contents of the lost original really were, where it is shown that the record itself, or a copy from it is not a true copy. By the very terms of the statute, the record of a deed is not original evidence, for it can be used only on proof of the loss of the original deed, or that the latter cannot be produced by the party offering the proof; and the object of the statute evidently was to require recording, in the first place, as notice to subsequent purchasers; and in the second, to supply a convenient statutory mode and instrument of secondary evidence. Its whole effect can be accomplished, without in any manner displacing or superseding the common law principles which authorized other modes of proving the contents of lost deeds and other instruments. It is in this light that the statute has been viewed and treated by the Supreme Court of Illinois. Bowman v. Wettig, 39 Ill., 416. In Nattinger v. Ware, 41 Ill., 245, it was decided that a deed, properly executed and acknowledged but recorded with a misdescription of the premises, would protect the grantee against subsequent purchasers and incumbrancers. But how could this be, unless The evidence offered and objected to was, the party were at liberty to prove the mistake we think, competent. The testimony of witin the record, either by the production of the nesses who had read the original deed, as to original or, in case of its loss, by other compe- their recollection of its contents, was direct evitent secondary evidence? This is what hap-dence of the fact; and the copy of the registry pened in Nixon v. Cobleigh, 52 Ill., 387. There of the deed, as entered in the file book, was a the plaintiff in ejectment, to prove his title, copy of an official entry, made in a book of relied on a deed, signed, as he claimed, “Sam-public records required to be kept by the reuel H. Turrill." The original not being in his power to produce, he offered a certified copy from the record. It purported, however, to be signed by "James H. Turrill." Against the objection of the defendant, he was allowed to prove, by parol evidence, that the original was signed by the name of Samuel H. Turrill. The court said: "This renders it morally certain that the recorder made a mistake in transcribing the original upon his records." The same construction was given to a statute of Alabama, the meaning of which cannot be distinguished from the Statute of Illinois, by the Supreme Court of that State in Harvey v. Thorpe, 28 Ala., 250, where the very point was ruled, that parol evidence was admissible to show that a deed was not correctly recorded. And the same principle was adjudged in Wisconsin, in Sexsmith v. Jones, 13 Wis., 631, and in New Hampshire, in Wells v. Iron Co., 48 N. H., 534. The next question relates to the competency of the evidence admitted by the court to prove the mistake in the record of the deed, and the correct description of the property as contained in the original. This was in substance as follows: first, the 109 U.S. U. S., Book 27. corder, and which constitutes the first step in the process of recording. The statute requires that every recorder shall keep "an entry book, in which he shall, immediately on the receipt of any instrument to be recorded, enter, in the order of its reception, the names of the parties thereto, its date, the day of the month, hour and year of filing the same, and a brief description of the premises, indorsing upon such instrument a number corresponding with the number of such entry." R. S. Ill., 1845, p. 432, sec. 7; L. 1847, p. 69, sec. 1; L. 1869, p. 2, sec. 7. All these items of evidence tended to prove the alleged mistake and what was the correct description of the premises conveyed in the lost original deed, and were entitled to be considered, in connection with the certified copy of the record of the deed itself, as secondary evidence of its contents. In admitting and considering them, the circuit court committed no error; what effect should be given to them, singly or together, was for that court, to whom the cause had been submitted, alone to determine. We find no error in the record, and the judgment is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. 57 909 NEW ORLEANS NATIONAL BANKING | mortgage on a certain plantation in La Fourche Parish, Louisiana. Two of the notes were paid, but those given to the Bank of New Orleans and Barnsley were not paid at maturity. Thereupon, the Bank, having instituted a suit on the JOHN I. ADAMS, JAY L. ADAMS, WILL- mortgage and the note held by it, on June 11, IAM H. REGNAUD ET AL. (See S. C., Reporter's ed., 211-215.) Mortgage, what is-an agreement is not. 1. Although no precise form of words is necessary to constitute a mortgage, yet there must be a present purpose of the mortgagor to pledge his land for the payment of a sum of money or the performance of some other act, or it cannot be construed as a mortgage. 1867, obtained a decree of foreclosure against Tucker Brothers, by virtue of which, on September 7, 1867, the mortgaged property was sold by the sheriff to one Albert N. Cummings for the price of $13,025 to satisfy said unpaid notes. Cummings being unable to pay the purchase money, it was agreed between him and the parties entitled to the proceeds of the sale that he should have time; whereupon, Cummings, on September 7, 1867, executed an agreement in writing, before J. K. Gourdain, a notary of the Parish of La Fourche, in which he recited that he had not paid the purchase money of the plantation, and declared as follows: "That he corresponded and compromised with the mortDecided Nov. 12, 1883. gage creditors hereinafter named, who agreed to give him time, without, however, impairing 2. A purchaser of premises at a mortgage foreclosure sale cannot, by agreement, keep alive and in force such mortgage after it has been foreclosed, as security for the purchase money; such agreement is not a mortgage. [No. 91.] Argued Oct. 31, 1881. APPEAL from the Circuit Court of the United or novating the original claims, the right to en States for the District of Louisiana. The history and facts appear in the force which they expressly reserved." Cummings then by this same agreement stip◆ ulated that out of the price of the plantation he Statement of the case by Mr. Justice Woods: would pay to one Gaubert the sum of $1,851.10, In equity. The facts as they appear from on or before March 1, 1861, he holding the first the pleadings and evidence, were as follows: a privilege on a part of the plantation for that firm doing business in Louisiana under the name amount; to Barnsley the sum of $4,904.40, on of Tucker Brothers, on February 24,1860, made or before May 15, 1870, and to the Bank of New and delivered their promissory note of that date, Orleans $6,269.50, on or before May 1, 1870, and for $5,000, payable February 15, 1860, to the that all these sums should bear interest at the Bank of New Orleans, which afterwards, by virt-rate of eight per cent per annum after maturity ue of the provisions of the "Act to Provide a Na- till paid. The agreement then further declared tional Currency," etc., passed June 3, 1864, be- as follows: came a national bank under the name of the New "It is understood, as above stated, that the Orleans National Banking Association. Tucker parties hereto do not by these presents impair, Brothers, on the same day, executed three other affect or novate their existing claims; and that, notes, for $5,000, one of them, payable to God-in case of non-payment, they will be entitled to frey Barnsley, falling due January 21, 1861. To secure these four notes, the makers executed a enforce the judgments which may be held by them; and furthermore, that the original mort for the revesting of the estate at the time appointre-ed, at law the estate vests in the mortgagee, subject in equity to the right of redemption by the mortgagor. Shields v. Lozear, 34 N. J. L., 496; Fay v. Cheney, 14 Pick., 399; Carpenter v. Carpenter, & R. I., 542; Hemphill v. Ross, 66 N. C., 477; Hagar v. Brainerd, 44 Vt., 294; Johnson v. Watson, 87 III., 535; Wood v. Trask, 7 Wis., 566. NOTE.-Mortgage defined; nature of. Generally speaking, whenever a transaction solves itself into a security for a debt it is a mortgage. Lyon v. Lyon, 67 N. Y., 250; Wilcox v. Morris, 1 Murph., 116; S. C., 3 Am. Dec., 678; Reed v. Lansdale, Hardin, 6: Wilmerding v. Mitchell, 42 N. J. L., 476; Peckham v. Haddock, 36 Ill., 38; Dougherty v. McColgan, 6 Gill & J., 275. At common law a mortgage of lands is an estate upon a condition, defeasible by the performance of the condition according to its legal effect, as the payment of money or the fulfillment of some contract. Montgomery v. Bruere, 4 N. J. L., 268; Gibson v. Martin, 38 Ark., 212; Mitchell v. Burnham, 44 Me., 299; Carter v. Taylor, 3 Head, 30; Erskine v. Townsend, 2 Mass., 495; Lund v. Lund, 1 N. H., 41; Welsh v. Phillips, 54 Ala., 309; Moore v. Esty, 5 N. H., 469; Baker v. Thrasher, 4 Den., 495: Trimm v. Marsh, 54 N. Y., 599; S. C., 13 Am. Rep., 623; Dexter v. Harris, 2 Mason, 531; 4 Kent, Com., 133; Wms. Real Prop., 349; 1 Greenl. Cruise, 548. A mortgage is regarded in many States as merely a lien on land, both at law and in equity; the mortgage is regarded as only incident to the debt, which is considered the principal thing. Brinkman v. Jones, 44 Wis., 498; Fletcher v. Holmes, 32 Ind., 497; Goodenow v. Ewer, 16 Cal., 461; Dutton v. Warschauer, 21 Cal., 609; Bludworth v. Lake, 33 Cal., 255: Mack v. Wetzlar, 39 Cal., 247; Hurley v. Estes, 6 Neb., 286; Vason v. Ball, 56 Ga.. 268; Trimm v. Marsh, 54 N. Y., 599; Elfe v. Cole, 26 Ga., 197; Vason v. Ball, 56 Ga., 268; Woolley v. Holt, 14 Bush, 788; Berthold v. Fox, 13 Minn., 501; Timms v. Shannon, 19 Md., 269; Glass v. Ellison, 9 N. H., 69; Perkins v. Sterne, 23 Tex., 561; Blackwell v. Barnett, 52 Tex., It is in substance a security for a debt or an obligation to which it is collateral. Heburn v. War-326. ner, 112 Mass., 273; Brobst v. Brock, 77 U. S., XIX., 1002; Blackwell v. Barnett, 52 Tex., 326. The condition of defeasance may either be part of the deed conveying the estate, or it may be in another deed executed at the same time and a part of the same transaction. Friedley v. Hamilton, 17 Serg. & R., 70; S. C., 17 Am. Dec., 638; Clement v. Bennett, 70 Me., 207; Corpman v. Baccastow, 84 Pa. St., 363; Erskine v. Townsend, 2 Mass., 495; Archambau v. Green, 21 Minn., 520; Warren v. Lorris, 53 Me., 463; Haines v. Thompson, 70 Pa. St., 424; Norman v. Shepherd, 38 Ohio St., 320; Woodworth v. Guzman, 1 Cal., 203; Bapt. Soc. v. Clapp, 18 Barb., 36. If the mortgagor fails to perform the condition The word mortgage is said to be a French translation of the Latin mortuum vadium, that is, dormant or dead pledge, because if the mortgagor does not perform the condition on the day limited, the land is taken from him and so becomes dead to him upon condition. Litt., sec. 332; 2 Bl. Com., 157; 1 Greenl. Cruise, 545;1 Wash b. Real Prop., 476; Breese v. Bange, 2 E. D. Smith, 486. If the instrument clearly indicates the creation of a lien, the property upon which it is to take effect, and the debt to be secured, it is enough. Baldwin v. Jenkins, 23 Miss., 206; Burnside v. Terry, 45 Ga., 621; Sargent v. Howe, 21 Ill., 148; De Leon v. Hig uera, 15 Cal.. 483; Turner v. Watkins. 31 Ark., 429. |