WATElnlAN 'V. WATERMAN.

829

willing to assume any indebtedness that a mining partnership might incur. I think there is no insufficiency of consideration. The next point is the uncertainty of the property conveyed, and the hardship of performance. I do not think it is uncertain,-the property being mines, well known by name, and necessarily described in the records of the claims,-nor do I think it would be a hardship to enforce the contract. 'fhe names and records furnish the means of sufficient identification. There is no hardship a.bout it. It would be a great hardship to the other party if it was not en. forced. The party wh'o advanced the money, and who was entitled to receive the conveyance, is the one who took all the risk. He had everything to lose and nothing to gain, on the theory set up by the defendant, while the other side, had everything to gain and nothing to lose. The hardship would be directly the other way. It was complainant's assignor's money that was invested, and it was his money that secured the mines. If it turns out that the mines are valuable, and that the conveyance would be valuable to him, the result is still more valuable to defendants. The next thing set up is want of mutuality. You might as well say that there was a want of mutuality in a promissory note, and that a payee could not recover because the other party could not be compelled to take the money. If the obligors chose to give him this option, and to receive the large consideration of $26,000, which was to be paid back only out of the firl:lt products of the mine, besides a large indebtedness which he was not to receive back at aH,-if they were satisfied to give him this option, I do not think they can complain if he should choose to accept the option when it turned out to his ad· .vantage to do so, even if he was anxious to know the extent of his liability, and to refuse to give authority to them, on the other side, to run him into debt to an unlimited extent. I do not perceive why he could not make the agreement with the consent of the other par· ties, and why it should not bind the other parties when made. He gave an ample consideration. Whatever effect this might have upon the rights of creditors is outside of the present question. The defend· ants agreed to it, and it was sufficient as to them. Other defenses are pleaded which I do not think are sustained by the evidence. One is that it was only given as security. Manifestly it was not intended for any such purpose. If it was security, the security would be no better with than without it, because the money was to be paid' only out of the mine, in any event; and if the mine did not produce the money, it would not be paid, and it would have little value as security. Besides, be absolutely gave up an indebted· ness not to be returned or secured. That claim as to security was never made until set up in the answer. Even when the complainant first wrote to defendants to demand a conveyance, they did not set up security at all as a ground of defense. The ground relied on by the brother of Waterman was that his brother only took it, so that, in case

830

FEDERAL REPORTER.

it ever came to him, he could give it to defendant's own children. I do not think the testimony is sufficient to justify the court in coming to that conclusion. Evidently the deceased, James S. Waterman, to whom this contract was given, did not act upon that supposition; neither is there any evidence that any of these parties did until after his death, nor even till the conveyance was demanded. I shall therefore order a decree, in pursuance of the prayer of the complaint, for conveyance of the property, and that it be referred to the master to ascertain the profits that have been made. The other case against Porter is for the same thing, except for a smaller amount. Waterman agrees to convey twenty-four hundredths and Porter three hundredths of the mine. The only defense that Porter sets up is that it was merely as security. Manifestly he did not set that up in response to the demand of the complainant for a conveyance. He seemed at that time to recognize the liability, by implication at least, but was not certain to whom the conveyance should be made. He thought that the family should first settle their affairs before he was called upon to convey; but, briefly, the defense stands upon the same footing as in the other case. These parties all obtained assistance from the deceased, and assignor of complainant here; and through his aid, and at his risk, secured mines that turned out to be valuable, one of them now having one-half and the other nearly one-quarter. Justice requires that they convey the small part 80 richly earned, and which the defendants agreed to convey. I am satisfied, from the testimony, that the same decree should be made in this case that was made in the other.

THE HOLLADAY CASE.

HWKox v. ELLIOTT and others.

(Oircuit Oourt, .D. Oregon. June 14,1886.)

1.

CHAMPERTY-LIMITATION.

a..SAME-RES JUDICATA.

The formerruling of this court in this case (10 Sawy. 415, and 22 Fed. Rep. 13) that the agreement made in California on February 10. 1874, between S. G. Elliott and White, for the loan and repayment of money. was to be performed in that state, and is not champertous, and that a suit may be maintained to enforce a security for a debt arising thereon, without reference to whether an action on the debt directly against the debtor can be maintained or not, considered and affirmed. l

The obligation of White under said agreement, and the fact of his having performed the same, is res judicata since July 13, 1870, by the judgment of a competent court in White v. Elliott.
note at end of case, pt. 1.

1 See