With full knowledge of Barnette's staking, Hilty located a fraction on July 2, 1903. Hilty acknowledged the existence of the Barnette location when he located a fraction within its boundaries, because, as he argued, it was more than 330 feet from his center stake to creek claim No. 1. Hilty located by attaching his notices to the corner stakes, and neither staked his east line nor made any discovery. Freeman knew of Barnette's location when he staked, and he made no discovery.

The case stood, when Sigler went on the ground, thus: Barnette had staked and marked the ground, but had neither recorded his notice nor made a discovery; Hilty had marked two corners and recorded, but had made no discovery; Freeman had marked one or two upper stakes and recorded, but made no discovery. Sigler, as Barnette's agent, went on the claim for him in October or November, and began the first work of sinking through the deep layer of nongold-bearing muck to seek the mineral which lay at the bottom. A placer mining claim is not perfected until mineral is discovered, and at the time Sigler sunk his holes to bed rock to discover mineral, neither Hilty nor Freeman had any claim to the ground as discoverers. When on December 15, 1903, Sigler, as the agent of Barnette, made a discovery of gold, that discovery inured to the benefit of Barnette's claim, and not to that of either Hilty or Freeman, and when on January 4, 1904, Sigler located the claim by marking its boundaries, he had completely segregated the ground from the public domain, and secured such permanent and vested rights therein for hist principal that nothing which any other person could thereafter do could change, modify, or lessen them. The former inchoate claim was then a complete and fixed mining location, subject only to forfeiture by his failure to record within 90 days. He did record on March 7, 1904, within the time limited by law, and the location was then beyond the claims of either Hilty or Freeman, who had not even then made a dis

covery. It is true that on January 11, 1904, Berks and Sigler signed a contract or lay lease with Hilty, but that was without the consent or knowledge of Barnette, and, whatever effect it may hereafter be held to have on Sigler's rights as they conflict with Hilty's, it did not affect the Freeman part, which was irrevocably fixed by Sigler's discovery and recording in his own name for Barnette.

In so far as the Freeman claim is concerned, the BarnetteSigler claim was located, marked, recorded, and a discovery made thereon before the same acts were performed for Freeman, and to that extent there was not sufficient or any evidence to justify the jury in finding the verdict which they did. In instructing the jury, the court clearly, positively, and fully laid down the rules which, if followed, would have resulted in a verdict for the plaintiffs, at least so far as the Freeman tract was concerned. For the reason, then, that the evidence did not justify the verdict, the same is set aside, and a new trial granted.

LINDBLOOM v. KIDSTON et al.

(Second Division. Nome. September 12, 1904.)

1. MORTGAGES-ABSOLUTE DEED AS SECURITY.

A deed to real property, given by the maker of a promissory note, with a separate agreement that it is given to secure the payment of the sum due on the note, held to be a mortgage.

[Ed. Note. For cases in point, see vol. 35, Cent. Dig. Mortgages, §§ 60-67.]

2. VENDOR AND PURCHASER-VENDOR'S LIEN-RIGHTS OF BONA FIDE PURCHASER FROM GRANTEE.

A vendor of real estate, who reserves no lien of record by mortgage or otherwise, after the delivery of an absolute deed of conveyance to the vendee, has no equitable lien for deferred payments of the purchase money due him, which he can enforce

against the property in the hands of a subsequent mortgagor or purchaser for value.

[Ed. Note.—For cases in point, see vol. 48, Cent. Dig. Vendor and Purchaser, §§ 588, 700–708.]

3. PLEADINGS-ANSWER-AMENDMENT-NEW DEFENSE.

Upon a motion to vacate the former submission of the cause, the court will not permit a defendant to abandon the defense upon which the cause was tried by the court, and to substitute another and different defense, and thereupon to try the case · again upon the new and substituted defense.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 777.]

This is a suit to foreclose a mortgage given to the plaintiff, Erik O. Lindbloom, by William Kidston, one of the defendants, to secure the payment of a promissory note for $2,500, dated December 16, 1899, payable in gold coin, with 5 per cent. interest thereon in like gold coin one year from the date thereof. On the date of the said promissory note the said Kidston executed to said Lindbloom and delivered a deed for the placer mining claim described in the complaint, namely, claim No. 3 above discovery on Dry creek, in the Cape Nome recording district, containing 20 acres of land, more or less. Contemporaneously with the execution and delivery of the said promissory note and deed, the plaintiff and defendant delivered to each other their agreement in writing, whereby it was covenanted between the parties thereto that said deed was intended as a mortgage by the said defendant William Kidston in favor of the plaintiff upon the said property therein described, said claim No. 3, above mentioned, to secure the said promissory note for $2,500, with the interest thereon. This agreement is also itself a mortgage in terms and legal effect.

That the said deed was a mortgage can admit of no doubt whatever, inasmuch as the parties thereto by the terms of said agreement have expressly declared it to be a mortgage, and furthermore, to remove all doubt upon the subject, have insert

ed the artificial words of a mortgage as a part of said agree

ment.

The defense set up at the trial by the three defendants N. O. Hultberg, Charles Hultberg, and Walter H. Soderberg is: First. They deny that by the deed of July 12, 1899, as recited in plaintiff's complaint, or otherwise, the said N. O. Hultberg sold or conveyed the said placer mining claim to the said William Kidston, and aver that, on the contrary, ever since the said claim was located, prior to July 12, 1899, by said N. O. Hultberg and his grantees and successors in interest, said Charles Hultberg and Walter H. Soderberg have been and were at the date of the verification of said answer the owners of said claim, free of all liens and incumbrances.

Second. That the said loan made by said plaintiff to said defendant William Kidston, and said agreement, deed, and mortgage described by Exhibits A, B, and C in plaintiff's complaint, were executed by the said Kidston and the said Lindbloom, plaintiff, and accepted by plaintiff, with full notice and knowledge of the said title of the said N. O. Hultberg in and to said placer mining lands, and without notice to or with the consent of said Charles Hultberg and Walter H. Soderberg, who it is alleged in said answer acquired title to said claim on the 23d day of May, 1901. The evidence adduced at the trial before the court supports and establishes the material allegations of the complaint, leaving the counter allegations of the defendants' answer entirely unsupported by satisfactory evidence.

The defendants now move to vacate the submission of the case for trial by the court and for leave to amend their answer so as to permit them upon a new trial to set up as a further defense by interlining their answer as follows:

(1) That at the said time of the alleged sale by said N. O. Hultberg to said Kidston of said placer mine described in said complaint the said vendor and vendee entered into another

agreement in writing, marked "Exhibit A" and made a part hereof.

(2) That under said agreement said Kidston went into and ever since has remained in possession of said mine.

(3) That said Hultberg has performed his part of said agreement.

(4) That no part of said $2,000, the balance of the purchase price of said mine, has been paid.

(5) That said loan from said plaintiff to said Kidston was made by said plaintiff after actual notice from said Hultberg to said plaintiff, and with full knowledge on the part of said plaintiff of the conditions of said sale, and that said balance of $2,000 of said purchase price had not been paid. This motion is based upon the pleadings and papers on file and the evidence heretofore adduced in said cause.

Ira D. Orton, for plaintiff.

N. Soderberg and N. V. Rinehart, Jr., for defendants.

MOORE, District Judge. It is apprehended that that portion of the evidence which is comprised in the Exhibit D now attached to the answer is the evidence upon which the defendants mainly rely to support their motion. This same Exhibit D is in fact the Exhibit A described in the defendants' motion. There was no evidence at the trial that Erik O. Lindbloom ever assumed to pay N. O. Hultberg the sum of $2,000, the amount of the purchase price still alleged to be due N. O. Hultberg; nor is it alleged in the proposed amendments to the defendants' answer that it was so assumed.

The defendants, by the motion made, abandoned the defense which they made at the trial, and seek to set up another one, the substance of which is about as follows: It is true the plaintiff loaned the money in controversy in this suit to William Kidston, but at the time he took his mortgage given to secure the loan of $2,500 the mortgage claim was bound by grantor's