it says "twenty shares of stock to be delivered for each dollar to be paid the said parties." He had no interest in the stock to be sold and was not one of those to be paid. Although entitled to a commission of 10 per cent. on the gross purchase price, in the event and to the extent that he availed himself of the option to purchase, he was plainly not entitled to any commission or payment in respect of stock not sold. The reference to Exhibit A must therefore be understood as not including him, and therefore as directing a delivery to the other parties named in the exhibit, who are identical with those designated in paragraphs 8 and 9 as the "parties depositing the said stock" and "the undersigned parties." This view is also strengthened by the fact that the measure so prescribed for determining the interest of the depositors in the stock not sold-that is, 20 shares for each dollar to be paid-is the precise rate at which the gross purchase price was fixed, for by paragraphs 2 and 3 the depositors agreed to sell to Nix their 1,998,880 shares for $99,944.

Unlike the provisions relating to the disposition of moneys paid into the bank, this paragraph does not in terms direct an apportionment among the depositors, but only the delivery of the stock to "the parties named in said Exhibit A”-meaning the depositors. It does not say that the stock shall be delivered to them severally, or that 20 shares shall be delivered to each for each dollar to be paid to him, but simply refers to them in a collective way as do paragraphs 8 and 9. But, as there would necessarily be more than enough stock to fill the measure of 20 shares for each dollar to be paid to the depositors, and as the excess would necessarily be all or part of the 21,120 shares owned by Nix as stated in paragraph 7, it is urged that it could not have been intended that his shares should be delivered to the depositors or become their property, and therefore that it must have been intended that the bank should divide the stock and procure for and deliver to the several owners new certificates representing the shares to which they would be respectively entitled. There is some color for the contention, but we think it is not sound. Of course, it was not intended that the depositors should become the owners of Nix's shares any more than that he should become the owner of theirs without pay; but it does not follow that the original certificates representing the shares of both were not to be redelivered to the depositors from whom they were received. He had assented to the inclusion of his shares in these certificates, had indorsed upon the latter an assignment in blank, and had intrusted them to the possession and keeping of the depositors before they were delivered by the latter to the bank. He also assented to the terms of the agreement, although it contained no provision for the delivery to him of his shares save as he might by making the prescribed payments become entitled to the original certificates. In these circumstances, it is quite reasonable to believe that he was content to look to the depositors, to whom alone the agreement directs a redelivery, for a segregation of his stock in the event that through his default the certificates should be returned to them. Had there been a purpose to impose upon the bank the unusual duty of dividing the stock and procuring for and delivering

to the several owners new certificates for the shares to which they would be respectively entitled, it doubtless would have been plainly stated; but, as such an intention is not expressed, or even necessarily implied, we think the considerations and rules of interpretation before mentioned require that whatever doubt or uncertainty may exist in that regard should be resolved in favor of the bank, and that it must be held that no such duty was imposed.

Our conclusion is that the plaintiff was not entitled to demand that the bank divide the remaining stock among the several co-owners, or that it deliver to him alone the remaining certificates, and that therefore no conversion was shown, and a verdict against him was rightly directed.

The judgment is accordingly affirmed.

(155 Fed. 712.)

BELL V. NORTH AMERICAN COAL & COKE CO. (Circuit Court of Appeals, Sixth Circuit. June 18, 1907. On Rehearing, October 15, 1907.) No. 1,636.

1. WASTE NATURE OF REMEDY-EQUITY.

Equity has jurisdiction of a suit to restrain waste by the cutting and removal of valuable timber, and incidentally for an accounting for waste already committed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waste, § 16.]

2. ADVERSE POSSESSION-POSSESSION BY TENANT-EXTENT.

When a tenant is placed in possession of a definite part of a larger tract of land, the possession will not avail the landlord beyond the part so claimed and held; but, if one claiming under an assurance of title defining boundaries place a tenant in possession without limiting him to any definite part, the tenant's possession will extend to the landlord's boundaries, although the land actually occupied is but a small part of the whole.

[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Adverse Possession, § 585.]

3. SAME TENNESSEE STATUTE.

Under Shannon's Code Tenn. § 4456, possession of land under assurance of title, if continued for seven years, operates not only to bar an action on a superior title, but to devest that title and vest it in the adverse holder; but, on the other hand, possession without color of title continued for seven years gives a mere right to defend against the title so long as the possession is actual and continuous, under section 4458, which provides that no person shall have any action for any lands, but within seven years after the right of action has accrued, and such right is lost the moment the possession is abandoned. Hence, under such statute as construed by the Supreme Court of the state, where one in possession of land without color of title attorned to another who had made entry from the state of a definite tract, including his own, and agreed to hold possession of the whole for his landlord, the effect was an abandonment of his own possession. and from that time his possession was that of his landlord and referable to the entry, and extended to the whole tract, although there was no extension of his actual inclosure.

[Ed. Note.-State laws as rules of decision in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]

On Rehearing.

4. PUBLIC LANDS-ENTRY OF STATE LANDS-TENNESSEE STATUTE.

The provision of Acts Tenn. 1824. c. 22, § 6. making unlawful an entry of state land on which another resided or which was occupied by him,

unless he was given 30 days' notice, was intended solely for the protection of the occupier, by enabling him to exercise his prior right to enter the land; and an entry made without giving such notice to an occupier of part of the land is void only as to such part. The notice might, moreover, be waived by an occupier, and was so waived in a case where for a valuable consideration he agreed to attorn to the entryman and hold possession for him until the grant was secured.

Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.

John F. McNutt, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON, Circuit Judge. This is a bill to restrain trespass and quiet title to a large tract of mountain land lying in Cumberland county, Tenn. The complainant asserted title and possession of the lands included in several grants issued originally to Thomas B. Eastland, under whom by mesne conveyances the complainant claimed. These grants were from the state of Tennessee, and bore date of 1836. The bill averred that the defendant, Bell, claimed the lands included within grants Nos. 12,758, 12,769, 12,770, and 12,771, being junior grants, within the boundaries of senior grants to Eastland. It was averred that the defendant was trespassing by cutting valuable timber and removing same to the irreparable injury of the lands. It also charged that the defendant was insolvent. The answer disclaimed any title or interest in the lands claimed by complainant outside the limits of grant No. 12,771, issued May 26, 1874, to defendant, containing, by survey, 1,077 acres. It denied that the complainant had any possession of the lands inside said grant, denied that he was now or had been cutting timber from said land "for a long time," and denied insolvency. The answer asserted an actual adverse possession of the lands within said grant beginning at date of its survey made in March, 1872, and pleaded and relied upon the Tennessee statute of limitations of seven years. The court below found that jurisdiction existed because of the repeated trespasses of the defendant, and that the title of the complainant was the superior title to the lands included within the grant to defendant of 1874, except as to a parcel of 100 acres inside of said grant, designated as the "Bolin Survey," which said 100 acres had been held adversely for more than seven years under color of title by said Bolin or those who held under him.

There was evidence showing that the defendant had cut and removed valuable timber from the lands included within his junior grant. The extent of this cutting does not appear, but sufficient is shown to justify the assumption of jurisdiction for the purpose of enjoining trespass and an accounting. The case on its facts falls within Peck v. Ayers & Lord Tie Co., 116 Fed. 273, 53 C. C. A. 551.

Complainant's title, being under the elder grants, must prevail, unless, through adverse possession under his junior grant, the latter has become the better. Beyond the possession called the "Bolin possession" neither party has had any such open, notorious, and continuous adverse possession within the interlap of the conflicting grants as will

affect the results. The case must turn here, as it did below, upon the extent, character, and effect of the Bolin possession. The facts, as we find them, which bear upon this possession, are these: Under an entry made March 14, 1872, by one Jackson, assignor of Bell, the latter made a survey preliminary to applying for a grant. Upon this survey, dated March 18, 1872, a grant duly issued to Bell, dated May 26, 1874, for 1,077 acres, more or less, being the grant under which Bell claims title. This grant overlaps parts of two of complainant's Eastland grants. When Bell made this survey he found one Samuel Bolin living within the lines of his survey. Bolin had a house and barn, an orchard of grown apple trees, and about 15 or 20 acres in cultivation. The precise beginning of Bolin's occupation is not shown, but enough appears to show that Bolin had lived upon his occupation, claiming and holding it for himself for as much as 10 to 15 years. The evidence seems to establish that his original possession was taken under a parol arrangement with one Brown, who claimed to own lands in the vicinity. It turned out, however, that, if this was so, Bolin did not plant himself upon any land claimed or owned by Brown, and it is certain he had no deed or other instrument from Brown or any one else which would constitute color of title under the Tennessee statute of limitations. When Bell found Bolin within the Jackson entry and within the lines of his survey, he made an arrangement with him by which he attorned to Bell and agreed to hold for Bell the entire body of land described by the Bell survey and perfect Bell's title for him. Bell, upon his part, agreed that when, through such possession, his title should be made good, he would for a nominal consideration convey to Bolin 100 acres, which should include his occupation. That Bolin might know the lines of the 100 acres, it was then run out and a certificate of survey, made and signed by him as surveyor, given to Bolin. Bolin's possession covered lands within each. of the two adjacent grants of complainant which constitute its superior legal title. The learned circuit judge seemed to doubt the scope of the agreement between Bell and Bolin, but we find from the direct testimony of Bell and the subsequent admissions of Bolin, now dead, that the distinct understanding of both parties was, as we have stated it above, and that from that time, the date being fixed by date of the survey in March, 1872, Bolin held and claimed to be holding the Bell grant for Bell, and that when Bell's title should be made good he was to have a deed to 100 acres. When a tenant is placed in possession of a definite part of a larger tract of land, the possession will not avail the landlord beyond the part so claimed and held. If, however, one claiming under assurance of title defining boundaries, place a tenant in possession without limiting him to any definite part, the tenant's possession will extend to the landlord's boundaries, although the land actually occupied will be but a small part of the whole. Treece v. American Ass'n, 122 Fed. 598, 58 C. C. A. 266; Ross v. Cobb, 9 Yerg. (Tenn.) 463; Massengill v. Boyles, 11 Humph. (Tenn.) 113; and Elliott v. Pearl, 10 Pet. 443, 9 L. Ed. 475. But it is said that before Bolin attorned to Bell he had for more than seven years been in the open, continuous, and adverse possession of some 10 to 20 acres

of this land, and that he did not after agreeing to hold for and under Bell extend his actual possession beyond his original occupation, and that for this reason his subsequent possession as Bell's tenant did not inure to Bell's benefit beyond the inclosures. The argument is that Bolin had already acquired a defensive right of possession to the land actually inclosed by virtue of the second section of the Tennessee act of 1819, now section 4458, Shannon's Tenn. Code, which provides that: "No person, or anyone claiming under him, shall have any action, either at law or in equity, for any lands, tenements, or hereditaments, but within seven years after the right of action has accrued."

A possession without color of title, though continued for seven years, does not vest title, but is a mere right to defend against the title so long as the possession is actual and continuous, and it is lost the moment possession is abandoned. Marr v. Gilliam, 1 Cold. (Tenn.) 490, 510; Crutsinger v. Catron, 10 Humph. (Tenn.) 24. On the other hand, possession under assurance of title defining the metes and bounds extends the possession to the bounds, and, if continued for seven years, operates not only to bar an action by the superior title, but to divest that title and vest it in the adverse holder. Shannon's Tenn. Code, § 4456; Bleidorn v. Pilot Mountain C. & M. Co., 89 Tenn. 166, 15 S. W. 737; Tenn. & Pacific Ry. v. Mabry, 85 Tenn. 47, 1 S. W. 511. It is well settled by the Tennessee decisions that, if one go into possession under color of title and hold for seven years, and thereafter acquire an assurance of title to a larger tract which includes the smaller, a possession continued within the bounds of the smaller parcel, without an extension outside of its limits, will not be a possession under the new grant or other assurance of title. In such case a continual possession will be referable to the original assurance of title only. The reason is that, so long as the adverse possessor confines himself to the limits of the smaller parcel to which he has acquired title by adverse possession under color, there would be no actual invasion of the title. and right of the superior title to the lands outside of that parcel, but a possession consistent with the adverse possessor's legal rights. Smith v. Lee, 1 Cold. (Tenn.) 549, 552-3; Peck v. Houston, 5 Lea, 227; Coal Creek Co. v. Ross, 12 Lea, 1, 9; Bon Air Coal Co. v. Parks, 94 Tenn. 263, 29 S. W. 130. But this principle is not applicable when the original adverse possession of the smaller parcel was not under an assurance of title defining metes and bounds. Bolin did not become vested with any title by reason of his occupation before Bell's grant issued. He had at most a mere naked possessory right which would be lost by abandonment. When, therefore, he ceased to claim for himself and attorned to Bell, and there was no reason why he should not do so, however great his folly in building up a title for another when he might have ripened a title for himself by taking out a grant or obtaining some assurance purporting to convey title, Bolin's possession became thereafter the possession of Bell, and, from the date of Bell's subsequent grant, a possession of the entire grant, although there was no extension of his actual inclosure. This distinction, whether a good one or a bad one, is clearly the law of Tennessee, and was made and enforced in the case of Bon Air Coal Co. v. Parks,