¶1(concurring.) May 17, 1834, one Kent conveyed the premises in question to Philander Baker and David Baker. December 5, 1867, David Baker, one Edwards, now deceased, and F. S. Baker entered into a sealed agreement, stating that F. S. Baker had had an interest in the premises known as the “Philander Baker Place” of $650, which he had transferred to Edwards, and agreeing that Edwards should receive that sum with interest from David Baker, which sum should be a lien on the property. The plaintiff holds that claim, and seeks to enforce it in this action. The agreement was not recorded as a mortgage. July 20, 1868, David Baker quitclaimed the premises to Lenora Baker. The deed recites that the premises are subject to a mortgage to one Cottrell, and also “to a claim which Frederick Baker had against the premises for money laid out upon the house on said premises to the amount of $572.55,” and states that the rent is to be paid to said Frederick S. Baker until the amount is paid. July 20, 1868, David Baker executed a mortgage to Frederick S. Baker of the premises (subject to the Cottrell mortgage) for $572.50, described to be for advances and repairs on the building, and money to keep same insured. The mortgage states that the rent is to be paid over to said Frederick S. Baker. May 6, 1884, (probably this should be December 6, 1884,) Philander Baker and Lenora Baker conveyed the premises to defendant, Meader, in consideration of love and also of her agreement to support the parties of the first part during their lives and the life of the survivor.
¶2The principal question of law is whether the defendant, Meader, had notice of the agreement of December 6, 1867, by reason of the language used in the deed of July 20, 1868. The plaintiff claims that the language of the deed of July 20, 1868, referred to. the Edwards agreement of December 6,1867. The defendant insists that it referred to the mortgage of even date given by David Baker to Frederick S. Baker. Flow it will be seen that the alleged claim belonged, in 1867, to Edwards, and there is no evidence that it had been subsequently transferred to Frederick S. Baker. That claim was for $650. The deed of July 20, 1868, describes a claim which Frederick Baker then had against the premises. Edwards was then dead, and the claim which had belonged to him had, if valid, passed to the present plaintiff, Further, the deed specifies the amount of the claim as $572.50, (or $572.55,) which is the exact amount of the mortgage executed on the same day to Frederick S. Baker; And the same clause about the rent of the premises is found in the deed and in the mortgage. Assuming, then, that the contents of the deed of David Baker to Lenora Baker were presumed to be known to defendant, Meader, grantee of Lenora, it seems to us that she was not thereby chargeable with notice of another claim held by another person, when the existing mortgage to Frederick S. Baker corresponded with the recitals of the deed. It is to be observed that the complaint is only for the foreclosure of the lien alleged to exist by virtue of the agreement with Edwards, dated December 5, 1867. It is not a foreclosure of the mortgage to Frederick S. Baker. The question of actual notice of defendant, Meader, wras disposed of by the jury and the trial judge.
¶3The plaintiff further alleges that the conveyance by Lenora and Philander was for their own benefit, and therefore void as against their creditors. FTo allegations are made in the complaint on which this issue could be tried. Again, it does not appear that there was any personal indebtedness of any one except perhaps David Baker, who did agree to pay the amount to Edwards. Philander, the co-tenant, does not seem to have bound himself, and Lenora only took a quitclaim deed which imposed no personal obligation on her. I concur, therefore, with the opinion of my Brother Mayham.