BUNN, District Judge,
after stating the case as above, delivered the opinion of the court.
We think that the decree of the district court, affirmed as it was by the circuit court, was right' and should be affirmed. Indeed, it would require a tolerably clear case, after such lapse of time, to disturb a decree of the district court which had been affirmed upon a second hearing by the circuit court. Under such circumstances, when the findings of fact by the district court are affirmed upon appeal, this court will not disturb the decree, unless the error is clear. See Lammers v. Nissen, 154 U. S. 650, 14 Sup. Ct. 1189; Dravo v. Fabel, 132 U. S. 487, 10 Sup. Ct. 170. But, upon a careful review of the record and the testimony, we think the decree is right. While there were other questions made on the hearing, the contest in this court has centered upon a matter apparently not appearing anywhere in the pleadings, nor passed upon by the district court; and that matter is the agreement of February 10, 1874, providing for a sale of the homestead by Giddings to Gen. Harding for $8,000, to be paid as follows: A note of Cable, which Harding held, and was unpaid, less $200; the $6,000 covered by the bond of December 13, 1873; and the balance in cash; and also providing that Giddings should bid in the homestead at the assignee’s sale, which was to occur on February. 21, 1874. This agreement was offered in evi[339]*339dence on the hearing in the district court, and was objected to on the ground that it was not mentioned or set up anywhere in the pleadings. The court apparently reserved the question. It nowhere appears that the court ever decided the question of its admissibility in evidence, and no finding in reference to it, or any mention of it, is made by the court in its finding or decree. It seems quite clear that the objection taken to its admission in evidence was. good, as it: is not set up or referred to in any of the numerous hills, amended bills, supplemental bills, cross bills, or answers in the case. Why such an agreement, if relied upon by the party, — so inconsistent with other agreements, and especially with the $6,000 bond for a conveyance of the premises to Giddings upon, the payment of that sum, and which was afterwards assigned to Caroline Giddings, and also so inconsistent with the course of dealing between the parties, by which Caroline Giddings paid all hut ft,650 of die amount secured by the $6,000 agree111 cut, and tendered the balance, and Harding, the executor, - received these same payments without objection, — was not set up or referred i.o in any manner in any of the pleadings, it is difficult to conceive. The pleadings were so numerous that it. could hardly be expected the court could determine at a glance upon the propriety and force of the objection made to the introduction of the paper, and it would be natural and proper that it should reserve the question for fui’ther examinai ion. Hut whether, upon such examination, it sustained the objection, or believed from the other evidence, as the circuit court found, that the agreement of February 30, 1871, was never acted upon by the parties, and was therefore not properly in the case, cannot be determined from the record. If the court disposed of rhe agreement: upon either of these grounds, we think it justified in so doing. The agreement was not pleaded, and the record shows no offer to amend the pleadings so as to make it admissible in evidence. The agreement itself is quite inconsistent with the agreement of December 13, 1878, for the reconveyance to Giddings upon the payment of $0,000, and with the subsequent course of dealing in reference io that agreement, and with the payment of money under it by Caroline Giddings, as well as the payment of the Cable note. This Cable note was one made by It. W. Giddings and J. W. Giddings as surety to Henry Cable, and was held and owned by Harding. The agreement of February 10th provided that out of the $8,000 should be deducted a balance due on the Cable note; and, if the agreement was a subsisting one between the parties, The note should have been paid in that way. But, instead of this, Caroline Giddings paid the balance of the Cable note, in cash, either to Gen. Harding or to his representatives. The payment: of this note by Caroline Giddings, and the payment by her of the $8,000 bond, are quiie inconsistent with the agreement: of February 10th, and show that either that agreement never had valid existence, and never went: into effect between the parties, or that, it was abandoned, either of which suppositions would properly account for failure to assert and rely upon it in the litigation. If that agreement, which clearly contemplated that the $.6,000 bond should not: he paid [340]*340in money, had ever a potential existence, and was ever operative between the parties, the subsequent conduct of the parties, by which this bond, as well as the Cable note, was paid in cash by Caroline Giddings, and the money accepted upon the agreement by the'representative of the Harding interest, shows clearly enough that it had been abandoned. The executor of Gen. Harding’s estate could not receive this money from time to time from Caroline Giddings upon that bond, and then refuse to comply with the conditions of the agreement upon which the money was confessedly paid. Having-received the money upon the contract, he should have made the conveyance according to its terms, and is estopped from claiming that he was not under obligations to do so. It is true that the agreement of February 10th provided that John W. Giddings should bid in the land at- the assignee’s sale, and he did so bid it in on the first sale, had on February 21, 1874; but that sale was set aside by the court, and a resale ordered, at which resale, on May 4, 1874, Caroline Giddings bid in the property, and the sale was confirmed. Snyder testifies that he thinks J. W. Giddings was present in the clerk’s office, adjoining the place, when the second sale was made; that he talked with Harding about the matter of bidding before the sale took place; and that Harding stated it would be proper and right for J. W. Giddings to bid off the property, or that it should be bid off by or for him,- — that he did not wish to interfere with the interest of J. W. Giddings in the home farm. This evidence points in the same direction, — to an abandonment of this agreement. Again, Snyder testifies that Harding never purchased the $18,300 notes and mortgage, to his knowledge, or obtained them in any other way than as security for the money advanced to take up the $5,000 note, and such is the uncontradicted testimony of Harding’s son-in-law and trusted agent. Under these circumstances, it is difficult to give any effect to the agreement of February 10, 1874. The agreement is not under seal, and does not purport to be made upon any consideration. The external evidence of a consideration is equally wanting, the testimony disclosing none. It is suggested that it may have been to secure future advances of money, but evidence is wanting of any such advances. Snyder, Harding’s agent, testified;
“I have no recollection of Gen. Harding advancing any amount in cash; but whether he did, or not, his check book will show.”
The check book was not produced in evidence.
John W. Giddings testified in regard to the $18,300 notes as follows :
, “Three notes were given by H. W. Giddings ($6,000 each, about $18,300), secured by mortgage on the S. K % of section 17.
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BUNN, District Judge,
after stating the case as above, delivered the opinion of the court.
We think that the decree of the district court, affirmed as it was by the circuit court, was right' and should be affirmed. Indeed, it would require a tolerably clear case, after such lapse of time, to disturb a decree of the district court which had been affirmed upon a second hearing by the circuit court. Under such circumstances, when the findings of fact by the district court are affirmed upon appeal, this court will not disturb the decree, unless the error is clear. See Lammers v. Nissen, 154 U. S. 650, 14 Sup. Ct. 1189; Dravo v. Fabel, 132 U. S. 487, 10 Sup. Ct. 170. But, upon a careful review of the record and the testimony, we think the decree is right. While there were other questions made on the hearing, the contest in this court has centered upon a matter apparently not appearing anywhere in the pleadings, nor passed upon by the district court; and that matter is the agreement of February 10, 1874, providing for a sale of the homestead by Giddings to Gen. Harding for $8,000, to be paid as follows: A note of Cable, which Harding held, and was unpaid, less $200; the $6,000 covered by the bond of December 13, 1873; and the balance in cash; and also providing that Giddings should bid in the homestead at the assignee’s sale, which was to occur on February. 21, 1874. This agreement was offered in evi[339]*339dence on the hearing in the district court, and was objected to on the ground that it was not mentioned or set up anywhere in the pleadings. The court apparently reserved the question. It nowhere appears that the court ever decided the question of its admissibility in evidence, and no finding in reference to it, or any mention of it, is made by the court in its finding or decree. It seems quite clear that the objection taken to its admission in evidence was. good, as it: is not set up or referred to in any of the numerous hills, amended bills, supplemental bills, cross bills, or answers in the case. Why such an agreement, if relied upon by the party, — so inconsistent with other agreements, and especially with the $6,000 bond for a conveyance of the premises to Giddings upon, the payment of that sum, and which was afterwards assigned to Caroline Giddings, and also so inconsistent with the course of dealing between the parties, by which Caroline Giddings paid all hut ft,650 of die amount secured by the $6,000 agree111 cut, and tendered the balance, and Harding, the executor, - received these same payments without objection, — was not set up or referred i.o in any manner in any of the pleadings, it is difficult to conceive. The pleadings were so numerous that it. could hardly be expected the court could determine at a glance upon the propriety and force of the objection made to the introduction of the paper, and it would be natural and proper that it should reserve the question for fui’ther examinai ion. Hut whether, upon such examination, it sustained the objection, or believed from the other evidence, as the circuit court found, that the agreement of February 30, 1871, was never acted upon by the parties, and was therefore not properly in the case, cannot be determined from the record. If the court disposed of rhe agreement: upon either of these grounds, we think it justified in so doing. The agreement was not pleaded, and the record shows no offer to amend the pleadings so as to make it admissible in evidence. The agreement itself is quite inconsistent with the agreement of December 13, 1878, for the reconveyance to Giddings upon the payment of $0,000, and with the subsequent course of dealing in reference io that agreement, and with the payment of money under it by Caroline Giddings, as well as the payment of the Cable note. This Cable note was one made by It. W. Giddings and J. W. Giddings as surety to Henry Cable, and was held and owned by Harding. The agreement of February 10th provided that out of the $8,000 should be deducted a balance due on the Cable note; and, if the agreement was a subsisting one between the parties, The note should have been paid in that way. But, instead of this, Caroline Giddings paid the balance of the Cable note, in cash, either to Gen. Harding or to his representatives. The payment: of this note by Caroline Giddings, and the payment by her of the $8,000 bond, are quiie inconsistent with the agreement: of February 10th, and show that either that agreement never had valid existence, and never went: into effect between the parties, or that, it was abandoned, either of which suppositions would properly account for failure to assert and rely upon it in the litigation. If that agreement, which clearly contemplated that the $.6,000 bond should not: he paid [340]*340in money, had ever a potential existence, and was ever operative between the parties, the subsequent conduct of the parties, by which this bond, as well as the Cable note, was paid in cash by Caroline Giddings, and the money accepted upon the agreement by the'representative of the Harding interest, shows clearly enough that it had been abandoned. The executor of Gen. Harding’s estate could not receive this money from time to time from Caroline Giddings upon that bond, and then refuse to comply with the conditions of the agreement upon which the money was confessedly paid. Having-received the money upon the contract, he should have made the conveyance according to its terms, and is estopped from claiming that he was not under obligations to do so. It is true that the agreement of February 10th provided that John W. Giddings should bid in the land at- the assignee’s sale, and he did so bid it in on the first sale, had on February 21, 1874; but that sale was set aside by the court, and a resale ordered, at which resale, on May 4, 1874, Caroline Giddings bid in the property, and the sale was confirmed. Snyder testifies that he thinks J. W. Giddings was present in the clerk’s office, adjoining the place, when the second sale was made; that he talked with Harding about the matter of bidding before the sale took place; and that Harding stated it would be proper and right for J. W. Giddings to bid off the property, or that it should be bid off by or for him,- — that he did not wish to interfere with the interest of J. W. Giddings in the home farm. This evidence points in the same direction, — to an abandonment of this agreement. Again, Snyder testifies that Harding never purchased the $18,300 notes and mortgage, to his knowledge, or obtained them in any other way than as security for the money advanced to take up the $5,000 note, and such is the uncontradicted testimony of Harding’s son-in-law and trusted agent. Under these circumstances, it is difficult to give any effect to the agreement of February 10, 1874. The agreement is not under seal, and does not purport to be made upon any consideration. The external evidence of a consideration is equally wanting, the testimony disclosing none. It is suggested that it may have been to secure future advances of money, but evidence is wanting of any such advances. Snyder, Harding’s agent, testified;
“I have no recollection of Gen. Harding advancing any amount in cash; but whether he did, or not, his check book will show.”
The check book was not produced in evidence.
John W. Giddings testified in regard to the $18,300 notes as follows :
, “Three notes were given by H. W. Giddings ($6,000 each, about $18,300), secured by mortgage on the S. K % of section 17. In the fall of 1873 I gave them to the First National Bank of Galesburg as collateral for a note given them, for $5,000, by H. W. Giddings and myself, as security. Geo. Snyder, agent for A. G. Harding, paid the $5,000 to the bank, and interest, and the three notes and mortgage were transferred to him as collateral. The three notes for $18,300 are mine. I never sold them to anybody. I let them go as security for the other note, which I had signed as security for H. W. Giddings; and, when that note is paid, I ought to receive the three notes and mortgage back, for they are mine. I never got a cent for them.”
[341]*341That the payment of the debt for the security of which collaterals are assigned releases the collaterals, hardly needs the citation of authorities. Biebinger v. Bank, 99 U. S. 143.
We quite agree with Judge Woods, who heard the case in the circuit court, that the only debatable question of essential merit in the case arises out of the contract of February LO, 1874, and that:
“While this agreement was found among the papers of the deceased; it is clear that it was never acted upon, or treated by either party as binding. John W. Giddings made a purchase of the land of the assignee, it is true, but the said sale was set aside by order of court, and at. a subsequent sale the appellee became the purchaser; and from time 1o time payments were made upon the $6,000 note, until the debt was discharged. This, of course, was inconsistent with the contract of February 10, 1874. The appellant argues that he ought not to be bound by any estoppel, because when he received any payment he was ignorant of the contract. If there is any proof, outside of the briefs, of that ignorance, I have overlooked it. But even If he acted in ignorance, and under a mistake of his rights as executor, it was necessary, once he acquired knowledge of the agreement, if he desired to enforce it, that he should have made prompt return or tender to the appellee of all sums paid to him and to his testator upon the original obligation for $(¡,(¡00. and should have declared hie readiness to perform the contract in other respects. He could not retain the moneys so paid and at the same time insist upon a contract by which his right thereto had been extinguished.”
We are further of the opinion that because the agreement was not set up, either by bill or answer, in the pleadings, and was not considered or passed upon by the court of original jurisdiction upon the hearing, (his court cannot consider or give effect to it. National Bank v. Com., 9 Wall. 353; Morrill v. Jones, 106 U. S. 466, 1 Sup. Ct. 423; U. S. v. Morgan, 25 U. S. Sup. Ct. Rep. (Lawy. Ed.) 519; Board of Sup’rs of Wood County v. Lackawana Iron & Coal Co., 93 U. S. 619; Lloyd v. Preston, 146 U. S. 630, 13 Sup. Ct. 131.
The only other contention oí any substance made on the hearing was that the tender of the balance of $1,650 due on the $6,000 agreement was insufficient, because not an absolute and unconditional tender of the money. But the obligations to pay the money, and reconvey the land upon payment, were mutual and reciprocal, and not independent; and the tender, accompanied by a request to convey, was sufficient, as held by the district court. It was as much the duty of Harding to reconvey upon payment, as it was for Giddings to pay, the two acts being concurrent. The testimony oí A. M. Brown, who made the tender, is as follows:
“As the agent of Caroline Giddings, I did make a tender of $1,650 to A3-mon Kidder, executor, etc.. January 1, 1878, at office of Kidder, in Monmouth, 111. I went to Monmouth in company with Miss Giddings, ar the time before staled, to make the last payment on said contract. X presented Kidder the contract, and told him X desired to make the last payment thereon, and counted out to him $1,050. As I presented the money, I told him X desired a deed in accordance with the contract. He said he did not have the deed, and therefore couldn’t give it. He offered to receipt for the money in Harding's name, as he had before done. I told him 1 did not desire to do that, but desired to make him a tender of the money. lie counted the money carefully, said the amount was all right, and that the notes were all legal tenders. I then tendered said money, and demanded said deed; and, that being refused, I made a memorandum on the back of the contract, which there appears, bearing date January 1, 1878. Kidder refused to sign the memorandum, but said it expressed the facts. I then told him I would make the $1,050 an [342]*342abiding tender, at the First National Bank of Galesburg, and that when Geo. F. Harding, as executor, etc., should present to said bank a deed, conveying to John W. Giddings and his heirs and assigns all the right, title, and interest which the said A. G. Harding possessed or was soised of in December. 1873, in S. E. 14 17-10, 1, also &/2 acres off the north side of N. IS. 20, 10-1, then the bank would deliver said sum of $1,650. Miss Giddings and myself then returned to Galesburg, and, the bank being closed, we went to the First National Bank the next morning, being January 2, and deposited said $1,650 with said bank, to be delivered to Harding Avheii he complied with the conditions before named. The money has remained there ever since.”
The tender was not refused upon any ground, except that the agent did not have the deed ready. He was willing and ready to accept the money and receipt for it, and it ha.s been in the bank for his principal ever since the time of the tender.
There are no other questions that we desire to notice. The decree of the court below is affirmed.