Lockwood, survivor, etc. v. Mitchell et al. lars to the said Lockwoods, and the delivery of their note and mortgage deed, shall take place three days after said Lockwoods, or McCurdy & Aldrich, shall notify said Mitchell that said note and mortgage deed are ready for delivery. "At any time after the payment of said eight thousand dollars, in case said Mitchell shall present the written opinion of John W. Allen, Esquire, of Cleveland, Ohio, that the property included in said mortgage deed is not worth double the sum then due on said mortgage-that, within ninety days thereafter, the said Lockwoods will make out a mortgage deed, or deeds, and execute it, or cause it to be done, on other property, so as at all times the said Mitchell and Crawford shall have the amount of the money so due, secured on property worth double the sum then due; and it is also agreed between the parties, that said Lockwoods may at any time pay any part or the whole of said note, but not in less sums than one thousand dollars at a time; also, that in case that any part of the property mortgaged, the said Lockwoods shall wish to dispose of, that on their giving mortgage security on other property of equal value, or by procuring the written certificate of said Allen, that in his opinion, that the property then held by the mortgage, besides that which said Lockwoods may wish to dispose of, is then worth a sum of money, which *sum shall not be less than double the [390 amount then due on said note; that in either of said conditions, the said Mitchell and Crawford shall release from the mortgage, the piece or tract the said Lockwoods may wish to dispose of. "The payments of interest and of principal abovementioned to be made at the Leather Manufacturers' Bank in New York, in bank bills, current in the county of Westchester, or in bankable money, at the option of the said Lockwoods. "Dated, White Plains, March 17, 1836. "MINOTT MITCHELL, [L. 8. "By his attorney, Geo. Lockwood. "Sealed and delivered in the "JAMES MERREL." L. S.] [L. S.] Ralph and George Lockwood, at or about the time the above agreement was entered into, paid Minott Mitchell the bonus of four hundred dollars mentioned therein. They received the eight thousand dollars, and executed their note and mortgage. The mortgage, which describes the note and premises, was as follows: "To all to whom these presents shall come, greeting: Know ye, that we, George Lockwood and Ralph Lockwood, of the town of Milan, county of Huron, State of Ohio, and Esther A., wife of said Ralph, for the consideration of $8,000, received to our full satisfac 351 Lockwood, survivor, etc. v. Mitchell et al. tion of Mitchell and Elisha Crawford, of White Plains, county of Westchester, and State of New York, do give, grant, bargain, and confirm unto the said Mitchell and Elisha Crawford, the following pieces of land, situated in Milan, aforesaid: "The first piece, consisting of lots numbers 5, 6, and 7, of Merry's and Eldridge's survey, in the southeast part of the fourth section of said tow hship of Milan, containing about two hundred acres of land, bounded on the northwest by the town plot of Milan, and lot number 2 of said survey; on the northeast by the Main street, running from between lots numbers 3 and 4 of said plot, extending south thirty-five degrees east to the south line of said township of Milan; on the south, by said south line, and on the west by lot number 4 of said survey, excepting one acre out of lot number 5, conveyed to William S. Hyde, by deed now on the records of said county of Huron. The second piece, or farm, situate in the third section of said township of Milan, containing one hundred and five acres, being the land heretofore conveyed by Josiah Smith and Tinker R. Smith, to Moses Gregory, by deed dated 23d April, 1823, and recorded in volume 3, page 652 of the records of said Huron county, in which said deed a particular description of the farm is given. The third piece is composed of the northwest and southeast three-fourths of lot number 29 in said town plot, with the buildings thereon. The fourth piece, or tract of land lying in the third section of the township of Norwalk, in said county of Huron, containing 391] about one hundred and thirty acres, being the *tract conveyed to said George and Ralph, by Stephen Saunders, by deed dated the 10th day of January, 1835, and recorded in volume 9, page 242, of said records of Huron. The fifth piece, containing about nineteen and three-fourth acres, lying in the fourth section of said township of Milan, bounded on the northwest by said town plot; on the northeast by land of Willam Clary and Lemuel Sales; on the southeast by a tract of land conveyed to Daniel Hamilton, and on the southwest by the before-described street, and by one-fourth of an acre owned by one Gregory. "To have and to hold the above-granted and bargained premises, with the appurtenances thereof, unto the said Minott Mitchell and Elisha Crawford, their heirs and assigns, to their proper use and behoof forever. And we do, for ourselves, our heirs, excutors, and administrators, covenant with the said Mitchell and Elisha Crawford, their heirs and assigns, that at and until the ensealing of these presents, we are well seized of these premises, as of a good and indefeasible estate in simple fee, and have good right to bargain and sell the same in manner and form aforesaid, and that the same is free from all encumbrances whatsoever. "And further, we do by these presents bind ourselves and our heirs, to warrant, and forever defend the above granted and bargained premises, unto the said Mitchell and Elisha Crawford, their heirs and assigns, against all claims and demands whatsoever. Lockwood, survivor, etc. v. Mitchell et al. "In witness whereof, we have hereunto set our hands and seals, the 17th day of March, in the year of our Lord 1836. "Whereas, the said George Lockwood and Ralph Lockwood have this day executed their promissory note to the said Mitchell and Elisha Crawford, for the sum of $8,000, payable in five years from the first day of April next, with interest at seven per cent., payable half yearly, from and after the said first day of April next. All payments to be made at the Leather Manufacturers' Bank, in the city of New York, in moneys current at the time of payment in Westchester county, or in money bankable in said city, at the option of payers. Now, therefore, the condition of this deed is such, that if the said George Lockwood and Ralph Lockwood shall pay the said principal sum and interest moneys, at the time and in the manner specified in said note, then this deed to be void, otherwise to remain in full force and virtue. "RALPH LOCKWOOD, "Sealed and delivered in presence of JACOB FORSHAY, for G. Lockwood. "LEVI WILCOXEN, Witnesses for Ralph Lockwood and Esther "T. J. BUTMAN, JA. Lockwood." } The mortgage was duly acknowledged and recorded. The interest was paid to April 1, 1842. Ralph Lockwood died in October, 1838, leaving a widow and children. He made a will, declaring therein, that all lands stand*ing in his and in his brother George Lockwood's individual [392 names, respectively, belonged to them in equal proportions; made his wife, Esther A., and Henry Lockwood, and George L. Marvin, his executors, and empowered them, or any two of them, to lease, sell, convey, or partition his lands. George Lockwood, shortly after the decease of his brother, became insane. His son, James C. Lockwood, took upon himself without any judicial authority, in December, 1843, to send his father to the lunatic asylum, at Columbus. In the meantime, Mitchell had brought seven actions of ejectment to recover possession of the premises mortgaged to him; and while these were pending, George Lockwood, then under treament in the lunatic asylum, employed LeGrand Marvin, a relative, and solicitor in chancery, residing in Buffalo, to file a bill in chancery against Mitchell and Crawford, in one of the vice-chancellor's courts of the State of New York, alleging that the loan secured by the note VOL. VII-23 353 Lockwood, survivor, etc. v. Mitchell et al. and mortgage was usurious aud void. Accordingly, in March, 1844, the bill was filed by Marvin, setting up usury, and praying an injunction to restrain Mitchell and Crawford from prosecuting their ejectment suits, then pending in the courts of Huron courty, Ohio, or any suits on the note and mortgage, and to declare, by decree, the note and mortgage usurious and void. The vice-chancellor allowed the injunction. An answer was filed by Mitchell, alleging, among other things, that the loan was not usurious, because secured on property in Ohio. A motion was made to dissolve the injunction, but was not pressed to a hearing. A few days after the motion was passed, and in July, 1844, Mitchell suggested to George L. Marvin, the law partner of LeGrand Marvin, at Buffalo, that one of them had better accompany him (Mitchell) to Milan, and endeavor to adjust the loan and its incidents. Accordingly, Mitchell and LeGrand Marvin went together to Milan. George Lockwood was still in the lunatic asylum. James C. Lock wood, his son, was attending to his father's affairs, but without any legal authority. The ejectment suits and the chancery suit were still pending. After various consultations between Mitchell, the executors of Ralph Lockwood, James C. Lockwood, and LeGrand Marvin, the 393] *following agreement was entered into, which may, for the purpose of reference, be denominated the family contract: "Agreement made August 5, 1844, at Milan, in the county of Erie, and State of Ohio, between Minott Mitchell and Elisha Crawford, the first party, and James C. Lockwood, the second party, wit nesseth: "Whereas, said first party are owners of, and mortgagees in, a mortgage executed by Ralph Lockwood and wife, and George Lockwood, and recorded in the Huron county (Ohio) records, vol. 11, pages 91 and 92; also, are owners of two judgments and bonds of the town of Milan aforesaid, on which the interest is unpaid from and after April 1, 1844. "Now, the said first party, in consideration of the sum of one dollar, to them in hand paid, the receipt whereof is hereby confessed, and the said parties, in further consideration, each of the other's agreement, as herein contained, do agree to, and abide by, and perform, as in the articles following, is provided for said parties respectively, to abide by and perform: "ARTICLE 1. Said first party do hereby place under the control of said second party, the said mortgage and the note therein mentioned, and permit hereby the foreclosuure of said mortgage, in Lockwood, survivor, etc. v. Mitchell et al. the name of said party, with full power on the part of said second party to cancel, or otherwise use for his own benefit, so much of said mortgaged indebtedness or premises, as shall not be expended in purchasing the four parcels of land hereinafter mentioned, after Ire shall have so purchased the same. "ART. 2. Said first party are, on the execution of this agreement, to transfer said two judgments and bonds, with their interest, from April 1, 1844, and out of which two bonds, said second party is to pay the assessments upon said mortgaged premises, for the bond indebtedness of said town of Milan. "ART. 3. The amount of said mortgage unpaid on August 1, 1844, is.... "The amount paid by said first party toward taxes on said mortgaged premises...... "The amount of said two judgments and bonds on August 1, 1844..... "Amounting in the aggregate to ..... $9,394 05 80 93 2,040 00 $11,514 98 "ART. 4 The said second party is to cause to be foreclosed, with diligence, the said mortgaged premises, and thereunder to purchase in, four parcels of the mortgaged premises, to wit: "1. What is described in said mortgage as the fifth piece, excepting the one-fourth acre in a burying ground. 2. What is described in said mortgage as the second piece, or farm, containing 105 acres. "3. What is described in said mortgage as the first piece, consisting of lots Nos. 5, 6, and 7, excepting therefrom said lot No. 5 "4. What is described in said mortgage as the third piece, composed of the southwest and southeast three-fourths of lot No. 29, and take the title thereof in his own name, and hold the same as trustee for said first party, and to account for the same and proceeds thereof, as herein provided. "ART. 5. Said second party is to sell, within one year after the title shall be purchased and perfected in him, so much of the said four parcels as that the amount of the such sales shall equal the sum of $1,500; and within two years from the date hereof, so much of said four parcels as to equal the sum of $4.000; and within three years from the date hereof, so much of said four parcels as to *equal the sum of $8.000; and within four years from the [394 date hereof, so much of said four parcels as to equal the amount of said sum of $11,514.98, and interest from August 1, 1844, and to sell for such sums as shall be for the interest of the owners thereof. "ART. 6. Out of the proceeds of said sales as provided in the last aforesaid article, and of the rents and profits of said four parcels of land, said second party is to retain his disbursements for the foreclosure aforesaid; also for all taxes and for all expenses incurred by said second party in taxes, or otherwise of said for uparcels; and after retaining such disbursements, the said second party is to |