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cited above. In that case, as in this, the defendant, Parks, went originally into possession of a part of the land in litigation, not under color of title, but as a mere trespasser, and inclosed and cultivated some 40 or 50 acres for more than seven years. He then made an entry of 1,175 acres, which include this original occupation and remained in possession under this entry, without extending his actual possession, for another period of more than seven years, when he obtained a grant. A possession under an entry, although not an assurance of title, will, if sufficiently definite to point out the land intended to be appropriated, be protected under the second section of the act of 1819 (Shannon's Code, § 4458), to the extent of its calls. Ramsey v. Monroe, 3 Sneed (Tenn.) 329.

As the defendant in the Bon Air Case had not had possession long enough under his grant to avail him unless he could connect his possession under his entry, the question arose whether he had had any possession under that entry outside of his actual possession which would avail him as a defense. For the complainant it was contended, there as here, that defendant had never extended his possession beyond his original inclosures, and that when he took out his entry, which included his original inclosures, he had acquired a right of possession and could not have been ejected by the owner of the title. But it was held that, as the prior possession had not been under color of title or any document defining the limits of his possession, his subsequent possession would be referable to his entry and be a possession coextensive with the limits defined by that entry, and the case distinguished from the cases relied upon to prevent such a result by the fact that in each of them the prior possession had been under color of title. This case is indistinguishable in principle from the one at bar, and must be controlled by it.

The result is that the decree of the court below must be reversed, with direction to dismiss the bill.

On Rehearing. This case comes on now upon a petition to rehear. Acts Tenn. 1824, c. 22, § 6, provides as follows:

"Be it enacted, that, hereafter, it shall not be lawful for any person to enter any land, in any of the entry-takers' offices, established by the act to which this is a supplement, on which land another resides, or cultivated by another, until such person shall have given, in writing, at least thirty days' previous notice, to the person residing on, or cultivating, said land, of his intention to enter the same; and any entry made, or grant obtained, contrary to the provisions of this section, shall be utterly void in law and equity."

It is now insisted that no notice was given to Bolin as occupier in possession at the date of the entry and survey upon which Bell's grant issued, as required by the act quoted above, and for this reason Bell's grant is null and void. The whole purpose of the act of 1824 was to apprise the occupier of an intention of entering the land, that he might avail himself of his right to secure it to himself by making first entry. Wilson v. Hudson's Lessee, 8 Yerg. (Tenn.) 398, 410. Neither does the object or the purpose of the act require that the grant shall be held void to any greater extent than the actual occupation existing at the time of the entry. It is therefore well settled that an occupier without color of title is protected by the act of 1824 only to the extent of the land actually occupied and inclosed, and that the grant is perfectly valid outside of such occupancy. Den v. Nixon, 10 Yerg. (Tenn.) 518; Horn v. Childress, Meigs (Tenn.) 102; Smith v. Lee, 1 Cold. (Tenn.) 549; Peck v. Houston, 5 Lea (Tenn.) 227, 230. Nevertheless, if the Bell grant is void to the extent of Bolin's actual occupancy, he must fail in his defense, for he has had no actual occupation outside of the Bolin occupancy. There is no evidence of a written notice to Bolin of intent to enter the land included in Bolin's inclosure; but there is abundant evidence that Bolin knew that Bell was making a survey with a view to either exclude his inclosed land from an entry made or to be made for Jackson, and that with this knowledge that he made an agreement with Bell by which his occupancy was to be included in the entry grant, and by which he was to remain in possession and hold the entire grant for Bell. The requirement of the act of 1824, as well as of subsequent acts upon the same subject, that one proposing to make an entry of public lands shall give 30 days' written notice of his intent to any person in actual occupation, being exclusively for the benefit of the occupier, may be waived by him. Wilson v. Hudson and Horn v. Childress, both cited above. The facts disclosed by this transcript make a plain case of waiver of written notice.

The evidence does not make it clear whether Bolin's attornment to Bell was made before or after the Jackson entry. The Bell grant recites the Jackson entry as having been made March 14, 1872, and the survey as made March 18, 1872. But it is plain a survey was made prior to Jackson's entry, for the land entered is described precisely as in the grant. Counsel for the North American Coal Company, in their original brief, took the position that the entry was not in fact made until after a survey by Bell. This they concluded from a correspondence of the description in the entry with that in the survey and from the fact that the survey of 100 acres for Bolin made by Bell describes this 100 acres as being within an earlier entry made by Armstrong Martin, and does not mention or refer to any entry made by Jackson. In this conc sion we concur. The certificate of survey given by Bell to Bolin is not dated, and we infer that prior to the actual date of Jackson's entry Bell made his survey for an entry to be made by Jackson, and at the same time ran out 100 acres for Bolin, which included Bolin's occupancy. Subsequently Jackson's entry was made, and then certificate of survey from the lines previously run was filed, in order to comply with the statute and procure a grant. We therefore conclude that prior to Jackson's entry Bolin was apprised that Bell's purpose in making a survey was to enter the lands surveyed in Jackson's name. Bell testified that his purpose was to exclude from Jackson's proposed entry all lands which he should find actually occupied by a settler. That he would have excluded Bolin's occupancy, but for the agreement he made with him, there is no reason to doubt. That agreement was conditional upon his obtaining an assignment from Jackson of the entry to be made in his name, that Bolin should Temain upon and hold under Bell until Bell's title should become the best title, and that also Bolin would pay him a small agreed sum as his proportion of the expense of the survey. Bolin from the time of that agreement held continuously for Bell for a period of more than seven years after date of Bell's grant and before suit brought. This agreement induced Bell to include Bolin's occupancy with the entry and grant under which he claims, and also induced him to go on and obtain an assignment from Jackson of his entry, and to obtain a grant, and finally to convey to Bolin's heirs 65 acres, including Bolin's occupancy, after Bolin's possession had, as he supposed, ripened his title under his junior grant. That he conveyed only 65 acres, instead of 100 acres, to Bolin's heirs, is of no consequence to the defendant in error here. He justifies his breach of good faith by claiming that Bolin did not pay him the whole of the little sum that he owed as his proportion of the cost of the survey of the 100 acres. He may not be clear of liability to Bolin's heirs for his failure to convey the remainder of the 100 acres he agreed to convey. But that may be set on one side as of no moment in this case; Bolin's heirs not being before the court. This agreement made by Bolin with the knowledge of the purpose of Bell to procure a grant which would include his occupancy operates as an estoppel, and in law was a waiver of the written notice required under the act of 1824. If thereby Bolin estopped himself to rely upon want of notice as a defense against Bell's subsequently acquired title, it is plain that third persons can stand in no better position.

84 C.C.A.-5

Upon another ground the result would be the same. The agreement between Bell and Bolin, in substance and legal effect, was a sale of his occupant right upon a sufficient consideration, and operated to extinguish it or pass it to Bell, we need not say which. That it was in parol was of no fatal consequence. In Tennessee a parol sale of lands is merely voidable, and not void. Third parties will not be allowed to object to a parol contract which the parties between themselves consider operative and valid. Brakefield v. Anderson, 3 Pickle 87 Tenn. 206, 211-212, 10 S. W. 360; King v. Coleman, 98 Tenn. 561, 571, 572, 40 S. W. 1082. This question as to the act of 1824 was not made in the court below, nor was it mentioned in the opinion of Judge Clark, nor in the opinion heretofore handed down by this court; but it might have been made, and we have, therefore, given it consideration, with the result that we find Bolin's right as occupier was waived at the time of the survey and the agreement subsequently carried out by the parties.

The other grounds presented for a rehearing are a mere reargument of the points already decided.

Petition will be dismissed.

(155 Fed. 833.)


(Circuit Court of Appeals, Eighth Circuit. June 29, 1907.)

No. 2,161.


The fact that a defendant's first name was stated incorrectly in the pleadings, decree, and an injunction order does not relieve him from liability for contempt for violation of such order, where he was in fact served with process or appeared, and the circumstances were such that he could not have been misled as to the person intended.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, 88


The information in a proceeding for contempt is sufficient, if it clearly apprises the defendant of the nature of the charge against him, and no particular form is essential.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Contempt, $ 146.) 3. INJUNCTION-VIOLATION-CONTEMPT-PLEADING.

A petition or motion for the attachment of a defendant for contempt in violating an injunction, which is entitled as in the original suit, and refers to the order of injunction granted therein by its date, and sets out in detail the alleged acts of violation, is sufficient, and need not set out


Where a party charged with contempt appears and goes to trial without objection to the sufliciency of the information and affidavits by appropriate motion, such objection waived.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Contempt, $ 147.] 5. ATTORNEY AND CLIENT-AUTHORITY OF ATTORNEY-PRESUMPTION.

The entry of appearance for a defendant by an attorney is presumed to have been authorized, and, to relieve himself from the effect of such appearance, such defendant has the burden of proving to the satisfaction of the court that it was unauthorized.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 5, Attorney and



A letter written by an attorney to his client, advising him of the terms of an injunction granted against him in a suit in which the attorney is employed, is not a privileged communication, since it contains nothing in the way of a confidential disclosure, and it is admissible in evidence to show actual notice of the injunction by the client.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, $8



A motion for a new trial is not essential in a federal court to entitle a party to a review of the judgment on writ of error by the Circuit Court of Appeals.


In Error to the Circuit Court of the United States for the Eastern District of Missouri.

See 128 Fed. 770.

David Goldsmith, for plaintiff in error.

George F. McNulty, James A. Seddon, and R. A. Holland, Jr., foi defendants in error.

Before HOOK, Circuit Judge, and PHILIPS, District Judge.

PHILIPS, District Judge. This is a contempt proceeding, in which the plaintiff in error was fined $250 and costs, growing out of the following state of facts:

In December, 1903, various railroad companies, including the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, filed bills in equity in the United States Circuit Court for the Eastern District of Missouri against several so-called railroad ticket "scalpers," to enjoin them from dealing in that class of tickets being and to be sold by said railroad companies as round-trip tickets to and from the Louisiana Purchase Exposition, at St. Louis. One of the suits by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company was instituted against Bennett Wasserman, Wasserman & Co., a corporation, and A. Aaron et al. The subpæna issued in this case was not served personally on the defendant Aaron; but on the return day the defendants, including Aaron, appeared by counsel, Judson and Green and others, and by written stipulation with complainants' solicitors consented that a teniporary injunction be ordered by the court, without prejudice to put in contestation the truth of the allegations of the bill and the right to the relief prayed for on final hearing. Accordingly, on the 29th day of April, 1904, Circuit Judge Adams presiding, the court entered a temporary injunction, enjoining the defendants "and each of them, and also their agents, servants, employés, attorneys and all

persons acting by or under their authority or direction, or the authority or direction of either of them, during the pendency of this suit, from buying, selling, dealing in or soliciting the purchase or sale of any signed contract nontransferable reduced rate ticket or tickets, or any part thereof, or any coupon thereof hereafter issued in good faith by said complainant, or by any other connecting railroad company for use over the road or roads of said complainant, its lines or any part thereof, issued on account of the Louisiana Purchase Exposition or World's Fair, to be held in the city of St. Louis, Missouri, in the year 1904, which tickets are by their terms nontransferable reduced fare tickets, and from soliciting, advising or urging persons other than the original purchaser thereof to use or attempt to use said tickets or any part thereof, on any train or trains on any lines of road of said complainant."

On the 30th day of July, 1904, the complainant in said suit presented to the Honorable Walter H. Sanborn, one of the circuit judges of said court, a petition for an attachment in contempt against said Wasserman & Co., Bennett Wasserman, and A. Aaron, for having violated said injunction order. The offense charged consisted in the "scalping" and sale of such ticket sold on behalf of the complainant, by the Erie Railroad Company, at the city of New York, on the 22d day of July, 1901, to one L. Goldman. The defendant, Aaron, made return to the writ by the name of Lewis Aaron, as his true name, and

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