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Several objections are made in the brief of the learned counsel for appellee, which we consider in order:

(1) It is contended that the sheriff's deed is invalid because the decree directing the sale of succession property should be according to law, and that according to law succession property cannot be sold, unless within 12 months preceding it has been duly appraised, and that according to the deed executed by the sheriff to the appellant, the sheriff made an appraisement of the property instead of having the property appraised in the succession proceedings. The record apparently shows that the sale took place more than a year after the appraisement made by the experts appointed by the judge. Counsel cites Webb v. Keller, supra, to the effect that it was the duty of the judge to cause the property to be estimated by experts before proceeding to the sale thereof, if it was such property as had remained unsold for more than one year after the appointment of the executrix or administrators; and cites Elliott v. Labarre, 2 La. 328, to the effect that if the forms of law be omitted a succession sale will be annulled. Conceding all this to be as counsel claims. we are of opinion that the irregularity suggested was a relative nullity, and whatever its value may be in a suit to annul the sale brought in the district court of Caldwell parish it is insufficient here to affect appellant's title.

(2) It is further contended that the deed does not show a sheriff's sale because it is signed by the sheriff and two witnesses, and is not signed by the purchaser, and therefore is not an authentic act, but a mere private act. The sheriff's deed, as evidence of title, seems to have been proved and presented in evidence without any question, and we find no motion to suppress the same, either in the court below or in this court.

(3) It is further complained that the sheriff's deed was not recorded at the time of the issuance and execution of the writ in the main case of Watkins et al. against Wooten, and the marshal, therefore, had the right to seize. The certificate shows that the deed was deposited for record in the proper parish on July 21, 1897, about a month prior to the actual seizure made in this case. We understand the law of Louisiana to be that a record of a conveyance of lands takes effect against third persons from the date of deposit and filing by the proper officer of the deed or other instrument, and that the time the officer actually spreads the conveyance on the records is immaterial as affecting the rights of parties. Payne v. Pavey, 29 La. Ann. 116; State v. Rojillio, 30 La. Ann. 883; Way v. Levy, 41 La. Ann. 454, 6 South. 661.

Counsel for appellees calls the attention of the court to alleged suspicious facts appearing on the face of the evidence, to wit:

"The deed, a copy of which is in evidence, recites: 'Before me, M. L. Micom, clerk 4th district court and ex officio recorder and notary public, came and appeared J. J. Meredith, sheriff,' etc. But the clerk does not sign the deed. The deed is dated December 31, 1894. It was not offered for record for more than two years. It is signed Jack J. Meredith, Sheriff,' and J. J. Meredith is one of the two witnesses to his own signature. The tax receipts offered in evidence show that the land was not assessed to complainant, but was assessed to W. L. Wo ten during the years 1895, 1896, and 1897, and paid

to this same sheriff, Jack J. Meredith, by the mortgagees, Watkins and others."

Under the law of Louisiana, it was not necessary for the clerk to sign the sheriff's deed. The statute makes the sheriff's deed authentic when signed by him. See Code Prac. La. arts. 692–698. The deed was recorded before the seizure in the suit of Watkins v. Wooten. And in this connection we may notice the fact that, as the mortgage debt on which appellees brought executory process. was long past due, the appellees were not very diligent themselves. The transcript shows that the sheriff's deed is signed by Jack J. Meredith, sheriff, and witnessed by C. M. Jarrell and I. I. Meredith. The tax receipts show that the land was assessed during 1896 and 1897 to W. L. Wooten, but do not show that the same land was not assessed to appellant.

On the record and case as made before the lower court, we are clear that the appellant shows a sufficient title to the land in controversy, and that by the sale made under the decrees of the district court of Caldwell parish the said land has been divested of any lien arising under the mortgage which is the basis of the seizure and sale in the main suit, and we are clear that on the record and evidence as submitted the appellant was entitled to a decree in his favor.

The cause will be remanded to the circuit court, with directions to enter a decree in favor of the petitioner, granting a perpetual injunction against the marshal and the complainants in the suit of Watkins et al. against Wooten et al., forbidding and enjoining them from further proceedings to subject the property described in the plaintiff's petition to the mortgage granted by W. L. Wooten in his lifetime to Henry Dickinson, which mortgage is fully set forth in the record, and to further decree the release of the seizure of said property and the restitution of the same.

(113 Fed. 13.)

PACE v. PROVIDENT SAVINGS LIFE ASSUR. SOC.
(Circuit Court of Appeals, Fifth Circuit. January 14, 1902.)
No. 1,083.

LIFE INSURANCE-CONTRACT-HOW CREATED.

A receipt given by an agent of a life insurance company for the first premium on a policy cannot be held to have effected a contract of insurance contrary to a provision of the application, taken contemporaneously, that no contract should be created unless the application was accepted by the company.

Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Mississippi.

J. R. Byrd & Olin C. Hunt, for plaintiff in error.
Edw. Mayes and J. B. Harris, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges..

PER CURIAM. The receipt for first premium, which is the basis of this suit, does not appear to have been given or issued by a duly

authorized agent of the Provident Life Assurance Society. If considered as issued by a duly-authorized agent, and to be a binding receipt of the company, still it must be construed in connection with the application and the statements therein, and held to effect insurance upon the life of the applicant only in case the application was thereafter accepted by the society.

The decree of the circuit court seems to be in accordance with the law and the facts of the case, and it is affirmed.

(113 Fed. 23.)

COLUMBIAN EQUIPMENT CO. v. MERCANTILE TRUST & DEPOSIT CO. (Circuit Court of Appeals, Fifth Circuit. January 7, 1902.)

No. 1,094.

1. EQUITY-REFERENCE FOR ACCOUNTING.

A complainant is not entitled to a reference for an accounting, where the allegations of the bill are denied in the answer, until there is at least sufficient evidence to show the right to an accounting. An order for an accounting will not be made to enable him to make out his case before the master.

2. CONTRACTS-RIGHT TO RESCISSION-CONTRACT WITH TRUSTEE.

Complainant corporation purchased a street railroad from defendant, which held it as trustee for certain bondholders. Some time after complainant had made its first payment, and had gone into possession of the property, its board of directors passed a resolution assenting to the distribution by defendant of the payment made, and complainant subsequently made another payment. Held that, in the absence of evidence that defendant still had in its possession any of the money, which it received solely as trustee, it was not subject to a suit by complainant to rescind the contract and recover the money paid thereon.

Appeal from the Circuit Court of the United States for the Northern District of Alabama.

This is a suit in equity by the appellant, a corporation under the laws of West Virginia, against the appellee, a corporation under the laws of Maryland. In the year of 1888 the East Birmingham Land Company executed a mortgage on its property to the appellee, as trustee, to secure $50,000 of bonds. In 1891 the same land company, after changing its name under an act of the legislature, executed a second mortgage, covering its railway property, to secure an indebtedness of $37,500, subject, however, to the first mortgage. Default was made in the payment of the second mortgage, and the trustee therein named sold the property in July, 1891. Webb and Tompkins became the purchasers, and under an act of the legislature of Alabama they organized a corporation known as the "Birmingham & Gate City Street Railway Company." The latter company then held the property subject to the first mortgage. The Birmingham & Gate City Street Railway Company made a contract with the appellee whereby the former company, in consideration of the appellee's refraining from making a sale of the property for default under the first mortgage, agreed to convey its railway property to the trust company on the 1st day of August, 1894. On the 29th of October, 1894, the appellant and appellee made an agreement by which the appellant purchased the said property from the appellee for the sum of $51.000. This agreement was made by the appellee with the consent and for the benefit of the bondholders under the first mortgage. Later, on February 11, 1895, the appellant and appellee made a more formal agreement of purchase and sale, and the appellant thereupon went into possession of the property. The sale, as stated in the first agreement, was on the following terms: Cash.

51 C.C.A.-3

payable November 15, 1894, $3,000; cash payable February 15, 1895, $3,000; and cash payable within 18 months from November 15, 1894, $45,000,-in all, $51,000; the deferred payments to bear interest at the rate of 6 per cent. from November 15, 1894. The entire purchase money was not in excess of a sum sufficient to pay off the bonds with interest secured by the first mortgage. The appellant paid $6,000 of the purchase money. When the last payment of the purchase money became due, amounting to $45,000, the appellant failed to pay it. It claimed to have discovered defects in appellee's title, and that it had been deceived, etc. The appellee filed its original bill to foreclose the first mortgage, and caused the property to be placed in the hands of a receiver. The appellant, the Columbian Equipment Company, was made a party defendant to the bill. A final decree was rendered foreclosing the mortgage, and the property was sold under that decree. In the meantime the cross bill under consideration had been filed, and the decree on the original bill foreclosing the mortgage was without prejudice to the rights asserted in the cross bill. The claims asserted in the cross bill were left for future consideration. The cross bill sought a rescission of the agreement between the parties whereby it purchased the property, because the contract was void as beyond the corporate powers of the contracting parties and upon allegations of fraud. The appellee, as defendant to the cross bill, filed an answer thereto admitting the contract of sale, but denying the other averments of the bill. The case was tried on its merits, and on May 28, 1901, a final decree was rendered dismissing the cross bill. Thereupon the Columbian Equipment Company appealed to this court, and assigns nine errors, all based on the action of the court in dismissing the cross bill, and asserting that, the agreements between the appellee and appellant having been ultra vires, the cross complainant was entitled to relief.

H. D. Hotchkiss (John F. Martin, on the brief), for appellant. A. H. Taylor (Albert Latady and J. Peirce Bruns, on the brief), for appellee.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The cross complainant and appellant asserts two claims against the appellee: (1) A claim for $6,000 purchase money, which it paid on the contract of purchase; and (2) $3,500, which it alleges it expended in improvements and betterments on the property. We first consider the latter claim.

It is alleged in the cross bill that "while in possession of said railway property" the cross complainant "expended in improvements and betterments thereon the sum of $3,500." The answer of the appellee denies this averment. No evidence is offered on the subject. It prayed that a lien may be declared on the property mentioned in the cross bill for the amount so expended, and for a reference to a master to ascertain the amount, and for a personal decree against the appellee. The bill does not show how the $3,500 was spent; that is, what improvements were made, or what investment of it was made. Conceding that it is sufficiently alleged that it was used in "improvements or betterments" without stating the facts, there should have been some evidence offered to sustain the averment. A reference will not be made to state an account without some evidence to show the necessity for the accounting. An order for an accounting is not made to enable the complainant to make out his case before the master. There must be, at least, sufficient evidence to show the right to demand the accounting. Railroad Co. v. Williams, 94 Va. 422, 26 S. E. 841. There not being sufficient

evidence as to this claim to require the court to make a reference, there was certainly not enough to authorize a decree for this sum in favor of the cross complainants.

The other claim in the cross bill is for the sum of $6,000 paid on the purchase money. Three thousand dollars, it is alleged, was paid "at or about the date of said contract, and the further sum of $3,000 principal, with interest accrued, upon the 15th day of February, 1895." A written agreement is in evidence that the cross complainant "earned $5,604 through the operation of the property while in its possession." It is not stated in the agreement whether these earnings were gross or net. Allowing a credit on the $6,000 for these earnings would leave a balance of $396.

(113 Fed. 48.)

The appellee received this purchase money in trust for distribution. It had no claim to the money except as trustee. The board of directors of the appellant, at an adjourned meeting on February 9, 1895, "resolved that the Mercantile Trust & Deposit Company are hereby authorized to make such disposition of $3,000 heretofore paid by this company as a part purchase price upon said property, and held in trust by them, as they may see fit in accordance with said agreement." It is not shown that the appellee has not made a legal disposition of the money. It is not shown that it retained any part of the $6,000 of purchase money. The appellee, we think, was authorized by the conduct of the appellant to distribute the funds. On the pleadings and evidence we could not presume that it was holding the money at the time this litigation began. These considerations would dispose of the case, we think, even if it be conceded that the contract was ultra vires, a question we do not decide.

After a careful consideration of the oral and printed arguments in behalf of the appellant, we are of opinion that the circuit court did not err in dismissing the cross bill. The decree is affirmed.

DEXTER V. KELLAS.

(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

No. 40.

1. WRIT OF ERROR-REVIEW-DISCRETION.

The refusal to postpone a trial is within the discretion of the court, and will not be reviewed on error unless the discretion has been abused. 2. SAME.

A refusal to reinstate a cause after dismissal is in the discretion of the court, and not reviewable on writ of error.

In Error to the Circuit Court of the United States for the Northern District of New York.

William A. Sutherland, for plaintiff in error.

Charles W. Mathewson, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

PER CURIAM. This is a writ of error by the plaintiff in the court below to review a judgment for the defendant taken by default

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