time ascertained that the homestead, as described by metes and bounds, contained 220 acres. The levy made on the land in the case of Randolph agnst Hudson, and the marshal's deed to Randolph, are not set out in the record; but it is stated in the record that the levy was on the "land in controversy," and that the deed conveyed "the land in controversy." We conclude that in both the levy and deed the description was as in the petition, to wit, "200 acres of land on the Brazos river," etc., describing it by metes and bounds. There is no evidence to show that any fraud was intended by the insertion of the 20 acres in excess of the homestead, or that the excess was known either to the grantor or grantee, or even to Randolph, before the survey. We think, therefore, that the deed is not made invalid as to the homestead by the insertion inadvertently of the 20 acres in excess of the homestead of 200 acres. This view Is sustained in Martel v. Somers, 26 Tex. 551, 560; and by Brewer, J., in Farwell v. Kerr (C. C.) 28 Fed. 345; and by Hawley, J., in Thomson v. Crane (C. C.) 73 Fed. 327. Even if the husband had knowledge of the excess in the deed, and had fraudulent intent as against his creditors, it would not make the deed to the wife void as to the homestead (Bell v. Devore, 96 Ill. 217); otherwise, the husband could, by an artifice and fraud of which the wife was innocent, defeat her homestead rights by an act which appeared to her to better secure them. These conclusions are as applicable in a court of law as in a court of equity, for a deed or bill of sale may be held valid at law as to part of the property conveyed or transferred and invalid as to part. Weller v. Wayland, 17 Johns. 102. There is nothing in the Texas statute (Rev. St. 1895, art. 2545) that conflicts with these principles. It only contains the language common to such statutes, making voluntary conveyances "void as to prior creditors." In Kerrison v. Cole, 8 East, 231, 232, the instrument in question was a bill of sale and mortgage of a ship, which, by statute, was declared to be "utterly null and void to all intents and purposes." In the instrument was a covenant to repay the money lent. Mr. Justice Lawrence held that the instrument might be good in part and bad in part, and that the undertaking to repay the money was good. It is clearly a just rule, when good and valid provisions are mixed with bad and invalid, to sustain the former whenever a separation can be made. This would not be done, however, in a case where a statute by its express terms declares the whole deed or contract void on account of some provision which is unlawful; nor where there is some all-pervading vice, such as actual fraud, participated in by both parties to the contract or deed. But there is no such statute applicable to this case, and no such proof of fraud. Lord Hobart quaintly said "that the statute is like a tyrant; when he comes he makes all void; but the common law, like a nursing father, makes void only that where the fault is, and preserves the rest." Norton v. Simmes, Hob. p. 48, 12c; Anderson v. Hooks, 9 Ala. 704, 706.

5. It is conceded in the brief for the plaintiffs in error that “the nusband can convey directly to the wife his separate estate as well as community realty, neither being a homestead." Story v. Mar

shall, 24 Tex. 306, 307. The learned counsel contends, however, that the husband, cannot convey the homestead directly to the wife, because the constitution and statutes of Texas provide that the wife must consent to and join in the conveyance of the homestead. Const. art. 16, § 50; Rev. St. 1895, art. 636. When the wife joins in such conveyance, the statutes provide for an acknowledgment by her on privy examination. Rev. St. 1895, arts. 635, 4618. It is urged that, these provisions not being complied with, the deed by Hudson, conveying the homestead to his wife, is void. The statutes requiring the privy examination of the wife as to conveyances of the husband and of her separate property are for her protection and benefit. They are not applicable, we think, to a conveyance of real estate by the husband to the wife. It being conceded that the husband, under the Texas law, can convey his real estate direct to the wife, there is no reason why he cannot convey to her the homestead to which he has the title. The consent and privy examination of the wife are required only when the conveyance is made to another. As she does not sign, it is not necessary for her to acknowledge a deed to herself. Her acceptance of the conveyance and claim of right under it shows her consent to it. The reason of the law requiring her acknowledgment is not applicable to a conveyance made to her, and the statute has no application.

6. It remains for us to consider the defense of the statute of limitations of five years. Peaceable and adverse possession of real estate for five years bars a recovery. Rev. St. Tex. 1895, art. 3342. Brown went into possession in May, 1889. This suit was brought July 9, 1898. The evidence shows that the plaintiff below, M. A. Hudson, was a married woman when the land was conveyed to her and when the adverse possession commenced, and has remained a married woman to the present time. Article. 3201 of the Revised Statutes of Texas of 1879 provided that this statute of limitations should not run against a married woman. This exception in favor of married women remained the law until April 1, 1895, when the statute was so amended as to permit the limitation to run against married women. The amending statute left out married women in the list of those against whom the statute was not to run pending the disability. This language is then used:

"Provided that limitation shall not begin to run against married women, until they arrive at the age of twenty-one years; and, further, that their disability shall continue one year from and after the passage of this article, and that they shall have thereafter the same time allowed others by the provisions hereof." Rev. St. 1895, art. 3352.

Until April 1, 1895, article 3201, supra, made the disability of cov erture complete. The amending act of April 1, 1895, removes the disability as to married women over 21 years of age, but it is provided that the disability shall continue for one year after the act takes effect. One year after the amending act took effect married women had no disabilities. From that period,-one year after the act took effect, they start even with men and single women, and then they are to "have the same time allowed others by the provisions hereof." The act gives the married woman over 21 years of

age one year to learn that her disabilities are removed, and it is then applied to her as to men and single women. One year after the passage of the amendment it began to apply equally to married and single women. Five years had not elapsed when this suit was brought from the removal of Mrs. M. A. Hudson's disabilities of coverture. We are advised that this statute has not been construed by the supreme court of Texas. We cannot concur in the contention of the plaintiff in error that the time elapsing before the adoption of the amendment should be counted against married women, giving them only one year to sue after the adoption of the amendment.

7. The material facts in the case are proved by record evidence or by uncontradicted evidence. The conflict is about matters that are immaterial. Where the case depends on evidence about which there is no conflict, and of a kind from which different inferences cannot be reasonably drawn, the court may direct the verdict. If it would be the plain duty of the court to set aside a verdict if given for the defendants, the court should direct the jury to find for the plaintiffs. Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780. The court properly directed the verdict for the plaintiffs. The judgment of the circuit court is affirmed.

(107 Fed. 41.)

TOOTLE et al. v. COLEMAN et al.

(Circuit Court of Appeals, Eighth Circuit. March 11, 1901.)

No. 1,459.

1. GARNISHMEnt-Debt Due Creditor OF ANOTHER STATE SUBJECT to. The right to garnish a debtor is not limited to the situs of the chose in action, and a garnishment by a citizen of one state of a debtor of the same state, whose creditor resides, whose debt was contracted and is payable in another state, is such an attachment of the chose in action as will authorize the court to obtain jurisdiction to dispose of it by publication of the summons against the defendant.

2. REMOVAL-ESTOPPEL FROM DENYING JURISDICTION.

One who removes a case from a state to the federal court is estopped from attacking the jurisdiction of the latter upon any ground except that the court from which it was removed had no jurisdiction.

3. PARTY CONDUCTING DEFENSE IN ANOTHER'S NAME ESTOPPED BY JUDGMENT. One who instigates another to do a wrongful action, and, when the wrongdoer is sued, takes upon himself and conducts the defense of the case, is estopped from again litigating with the plaintiff in that action the issues there decided.

4. DEFECT OF PARTIES WAIVED BY FAILURE TO PRESENT BY DEMURRER OR ANSWER TO THE MERITS.

A defect of parties plaintiffs or defendants through misjoinder or nonjoinder is waived by a failure to suggest the same by demurrer or an

swer.

5. CREDITOR INSTIGATING CONVERSION And Defending CONVERTER Bound by JUDGMENT AGAINST HIM.

A creditor who indemnifies an officer against damages for seizing and converting property, and defends an action against the officer individually for the conversion, is estopped by the judgment against him from

again litigating with the plaintiffs in that action the issues there decided.

(Syllabus by the Court.)

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

Kate Tootle, W. W. Wheeler, Joshua Motter, and F. S. Dameron, the plaintiff's in error, are the surviving members of the co-partnership styled Tootle, Hosea & Co., which in 1890 was composed of these plaintiffs in error and W. E. Hosea. Hosea died in 1893, and the plaintiffs in error continued the mercantile business of Tootle, Hosea & Co., assumed their liabilities, and received their assets, as partners under the name of Tootle, Wheeler & Motter. On January 10, 1890, Tootle, Hosea & Co. commenced an action against Thomas Lynch, and caused a writ of attachment to be issued against him and delivered to the United States marshal for the district of Kansas. R. L. Walker was at that time the marshal, and they gave him a bond of indemnity in the sum of $4,102, conditioned, among other things, that they would pay all damages to him which should result from his seizure under this writ of attachment of "certain merchandise situated in the storeroom now occupied by Coleman & Lynch, on Douglas avenue, Wichita, Kansas." The Coleman & Lynch referred to in this bond were R. R. Coleman and C. T. Lynch, the defendants in error in this action. Walker seized their goods under this writ of attachment, and disposed of them. Coleman & Lynch brought an action at law against him in one of the state courts of Kansas for his seizure and conversion of their goods. He delivered the summons served upon him to the attorneys for Tootle, Hosea & Co., and they answered for him that the property which he seized was the property of Thomas Lynch, the defendant in the attachment suit, and that he had lawfully taken it under the writ in that action. This action resulted on December 4, 1895, in a judgment against Walker for $4,873.20 damages and $214.42 costs. H. C. Solomon, John W. Adams, and George W. Adams were the attorneys for Tootle, Hosea & Co., who brought the attachment suit, and they continued to act for that firm until the plaintiffs in error succeeded them, and have since acted for the plaintiffs in error in all the litigation which has grown out of that attachment. They were hired and paid by Tootle, Hosea & Co. and their successors to defend Walker in the action just mentioned, and Walker neither paid nor agreed to pay anything for their services. On October 28, 1897, the defendants in error, Coleman & Lynch, commenced the action now before us. They were residents and citizens of the state of Kansas, and the plaintiffs in error were residents and citizens of St. Joseph, in the state of Missouri. For the sake of brevity, the plaintiffs in error will be called the "defendants," and the defendants in error the "plaintiffs," in speaking of this action. The defendants were conducting a mercantile business in St. Joseph under the name of Tootle, Wheeler & Motter, and various parties resident in Kansas were indebted to them in various sums, payable at St. Joseph, for goods purchased of them in that city. Coleman & Lynch sued the defendants in a state court in the state of Kansas, and garnished their debtors residing in that state. These debtors answered in the garnishee proceedings that they were indebted to the defendants in amounts which in the aggregate exceeded the claim of Coleman & Lynch. No service of summons was made upon the defendants otherwise than by publication under the statutes of Kansas. On December 11, 1897, the defendants removed this action to the United States circuit court for the district of Kansas. They then appeared specially in that court and moved to dismiss the action and to discharge the garnishees because the state court of Kansas had not acquired and could not acquire any jurisdiction over them by the garnishment of their debtors and the publication of the summons, and because the United States circuit court had acquired no jurisdiction. This motion was denied, and the defendants excepted.

For a cause of action, the plaintiffs alleged in their original petition that the defendants had directed and caused R. L. Walker, the United States marshal, to seize and convert their property. They also averred that they had brought the action and recovered against Walker the judgment for this conversion which has been recited, and that the defendants had employed and

paid the attorneys and conducted the defense of that action for Walker, and were the real parties in interest therein. On motion of the plaintiffs these averments regarding the trial of the action and the judgment against Walker were stricken from the petition, and thereupon the plaintiffs filed an amended petition in which they alleged that the defendants instigated and caused the conversion of their property, and sought to recover the value thereof. The defendants answered with a denial of every allegation of the amended petition, and an averment that the property in controversy belonged to Thomas Lynch, the defendant in the attachment suit, and that it was lawfully levied upon by Walker under the writ in that action. The plaintiffs replied that the issues tendered by the plea of justification had been tried in the action between them and Walker; that, while Walker was the nominal defendant, the defendants were the real defendants in that action; that they had given the bond of indemnity which induced Walker to make the levy; that they had employed and paid the lawyers who defended him in the action against him for conversion; that they were the real defendants in that suit; that judgment had been rendered against Walker therein; and that all the issues tendered by the plea of justification became res adjudicata between the plaintiffs and defendants by virtue of that judgment. The defendants moved to strike from the reply all allegations referring to the trial and judgment in the action against Walker. They demurred to the reply. They moved to dismiss the action. They objected to any evidence under the pleadings, to the introduction in evidence of the pleadings and judgment in Coleman & Lynch against Walker, and insisted in every way possible that the trial and judgment in that case were immaterial to any issue in this action. The court below denied their motions, overruled their demurrer, received the pleadings and judgment in the Walker case in evidence, and refused to permit the defendants to contradict the findings in that case relative to the ownership of the goods seized by Walker and their value. The plaintiffs introduced evidence, which was not contradicted, tending to show that Tootle, Hosea & Co. gave the bond of indemnity to Walker before he seized the goods of the plaintiffs; that he was a mere nominal party to the action of Coleman & Lynch against him; that the defendants were the real parties in interest in that action; that they hired and paid the attorneys who acted for Walker, and really inspired and conducted the defense. At the close of the evidence the court below instructed the jury to return a verdict for the plaintiffs for the amount of the judgment against Walker, and interest at 6 per cent. from the date of its entry. The defendants challenge this judgment by their writ of error.

John W. Adams and H. C. Solomon (George W. Adams, on the brief), for plaintiffs in error.

J. D. Houston (J. V. Daugherty, on the brief), for defendants in

error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The first objection urged against the judgment in question is that the court below was without jurisdiction because the state court of Kansas in which the action was commenced could not obtain jurisdiction over the defendants, who were residents and citizens of Missouri, or over the choses in action owned by them, by means of garnishment of their debtors, who resided in Kansas, and by service of the summons upon the defendants by publication at the suit of the plaintiffs, who were also residents and citizens of Kansas. The statutes of that state in terms authorize such garnishments, and the application of the amounts due to the defendants from the garnishees to the satisfaction of the plaintiffs' demand, upon publica