large amount of money in its improvement, without making any effort to impeach the sale until the filing of this bill. There is no excuse given for this delay, and the complainant would have thereby lost any right to the relief sought, if he ever had any. Oil Co. v. Marbury, 91 U. S. 591, 592, 23 L. Ed. 328; Simmons v. Railroad Co., 159 U. S. 278, 16 Sup. Ct. 1, 40 L. Ed. 150; Miles v. Vivian, 25 C. C. A. 208, 79 Fed. 848-853; Harwood v. Railroad Co., 17 Wall. 81, 21 L. Ed. 558. In the case of Oil Co. v. Marbury, above cited, Justice Miller says:

"The doctrine is well settled that the option to avoid such a sale must be exercised within a reasonable time. This has never been held to be any determined number of days or years as applied to every case, like the statute of limitations, but must be decided in each case upon all the elements of it which affect that question."

3. The Southern Railway Company has filed its charter in the state of Tennessee, as provided by the laws of that state, and is thereby authorized to make the purchase of another railroad_sold under judicial proceedings, as provided by its statutes. Acts Tenn. 1881, c. 9, § 2; Rogers v. Railway Co., 33 C. C. A. 517, 91 Fed. 299. The transaction has been executed, and the title has passed, and the state would be the proper party to now question the transaction, if it were illegal. In Rogers v. Railway Co., 33 C. C. A. 534, 91 Fed. 316, 317, this court, speaking through Judge Lurton, says:

"We do not think that this complainant, in his character as a stockholder of the Nashville, Chattanooga & St. Louis Railway Company, is in a posi tion to make this question. The railroads in question were sold at a judicial sale. The purchaser at that sale has conveyed them by deed to the Louisville & Nashville Railroad Company. The transaction is an executed one, and the title has actually vested in the purchaser. * * If the contract was in fieri, it might be open to a stockholder of the Louisville & Nashville Railroad Company as such, and upon a bill properly framed to restrain his company's officers from completing such an illegal transaction. But that is not this case. This is an executed transaction. The title has vested. It may be a defeasible title, but it has passed out of Phillips by his deed, and is vested in his conveyee. Until the state shall institute proceedings for the forfeiture of the charter, or for the purpose of defeating the title, it is a sound legal title, and will support this lease, unless it be subject to other objections."

The decree dismissing the bill was correct, and it is affirmed.

(113 Fed. 482.)

W. J. LEMP BREWING CO. v. ORT.

(Circuit Court of Appeals, Fifth Circuit. January 28, 1902.

No. 1,078.

EVIDENCE-SUBJECTS OF EXPERT TESTIMONY-MATTERS OF COMMON KNOWLEDGE. The question what would have been the result, under circumstances shown if the driver of a wagon had made a sharp turn for the purpose of avoiding a collision with a buggy, is not one for expert testimony, but the matter is one of common knowledge.

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

John Lovejoy, M. L. Malevinski, and Alex. Sampson, for plaintiff in error.

Jas. B. Stubbs, for defendant in error.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The refusal to permit the witness Nichols to testify as an expert in regard to what would have happened in case he, as driver of the beer wagon, had made a sharp turn to the right, whereby the fore wheels of his wagon would have missed the plaintiff's buggy, was not reversible error, because the matter was one of common knowledge; and, further, because the witness Nichols was thereafter examined and cross-examined fully with regard to all actual details of the collision.

There was no error in overruling the objection to the introduction in evidence on the trial of the stenographer's report of the testimony of Demetri Petropol, Amelia Petropol, and H. C. Nichols, taken on a former trial, because the stenographer's report was fully and sufficiently verified.

The refusal of the trial judge to give the special instructions requested before the court's charge was given did not constitute reversible error, because all the propositions and definitions involved were embraced in the charge as given, to which charge there was no objection except as to the rule of damages.

An examination of the pleadings in connection with the proceedings as set forth in the bill of exceptions will show that the rule of damages given in the general charge, and to which exception was taken, was correct generally and in detail, and, in our opinion, was proper to guide the jury in assessing damages, and in no wise tended to mislead them into giving double damages.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

(113 Fed. 290.)

KIRLICKS et al. v. INTERSTATE BUILDING & LOAN ASS'N.

THOMAS v. SAME.

(Circuit Court of Appeals, Fifth Circuit. January 21, 1902.)

No. 1,061.

1. ESTOPPEL-COVENANT TO PAY TAXES SUBSEQUENT ACQUISITION OF TAX

TITLE.

One who has obligated himself to a mortgagee of property to pay the taxes thereon, but fails to do so, by reason of which the property is sold for taxes, and he becomes the purchaser, takes the same subject to the mortgage, or as trustee for the mortgagee.

2. USURY-LAW GOVERNING-PLACE OF CONTRACT.

A contract of loan made by a building and loan association is not usurious, if valid under the laws of the state where it is made payable, by which, in the absence of a fraudulent intent, it is governed.1

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

M. E. Kleberg and Jas. B. Stubbs, for appellants.
Edgar Watkins and W. A. Wimbish, for appellee.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. Under the conceded facts of this case, the appellant Thomas contracted with the Interstate Building & Loan Association and appellant Kirlicks to pay in installments the taxes on the mortgaged property due to the city of Houston, and having failed therein, whereby the city obtained judgment and caused the sale of the property, he must, in equity, be held to have purchased from the city of Houston subject to the mortgage of, or as trustee for, the Interstate Building & Loan Association. See Mendenhall v. Hall, 134 U. S. 559, 10 Sup. Ct. 616, 33 L. Ed. 1012.

The contract of loan was not usurious. See Association v. Logan, 14 C. C. A. 133, 66 Fed. 827; Association v. Abbott, 85 Tex. 220, 224, 20 S. W. 118; Association v. Goforth (Tex. Sup.) 59 S. W. 871. The decree of the circuit court is affirmed on both appeals.

Statutory exemption of building and loan associations from operation of usury laws, see note to Andrus v. Association, 36 C. C. A. 343.

See, also, note on following pages.

NOTE.

What Law Governs Usury by Building and Loan Associations.

1. In General.

[a] (Ala. Sup.) Where a contract is made in one state, to be performed in another state, the parties may stipulate for the payment of the highest legal rate of interest allowed by either state, without offending against the usury laws of the other state, provided such stipulation is not made as a subterfuge and device for, and with the intention of, evading the usury laws.-(1900) Pioneer Savings & Loan Co. v. Nonnemacher, 30 South. 79, 127 Ala. 521; (1901) Barrett v. Central Building & Loan Ass'n, 30 South. 347. [b] (Ill. Sup. 1897) A contract made in Illinois by a foreign building and loan association, which it was authorized, by the statute under which it was organized, to make, is not usurious, where it would not be if made by an Illinois building and loan association.-Freie v. No. 4 Fidelity Bldg. & Sav. Union of Indianapolis, 46 N. E. 784, 166 Ill. 128, 57 Am. St. Rep. 123, affirming judgment (1895) 66 Ill. App. 152.

[c] (Pa. Com. Pl. 1895) The provisions of the act of 1859, and the general corporations act of 1874 and its supplements, that "no premiums, fines, or interest on such premiums that may accrue to building and loan associations shall be deemed usurious," do not apply to foreign building and loan associations authorized to do business in Pennsylvania.-Southern Building & Loan Ass'n v. Riggle, 4 Pa. Dist. R. 617.

2. Place of Transfer of Note.

[a] (Tex. Civ. App. 1898) A usurious building and loan note negotiated in Texas is governed by the laws of that state, though executed and performable in another state, according to the laws of which it would not be usurious.-People's Building, Loan & Saving Ass'n v. Bessonette, 48 S. W. 52.

3. Intention of Parties.

[a] (U. S. C. C., N. C., 1899) A building and loan association of Tennessee, doing business in several states, used in all the same form of notes and mortgages, which conformed to the laws of Tennessee, and contained a provision that they were made with reference to such laws. All applications for membership and loans were required to be sent for approval and acceptance to the home office, where all contracts and notes, were purported to be made, and were made payable, though local agents were established in other states, through whom applications and payments might be made for convenience. Held, that a note and mortgage made in conformity to such requirements by a resident of another state could not be considered as an attempt to evade the usury laws of such state, but that the parties must be held to have understood and intended in good faith to make the note and mortgage Tennessee contracts, in so far as it was in their power to do so.-McIlwaine v. Iseley, 96 Fed. 62.

[b] (S. C. Sup. 1897) Where it is the intention of the parties that a contract for a loan by a Georgia building and loan association to a resident of South Carolina shall be performed in the former state, the contract will be governed by the laws of Georgia, which provide that no fines, interest, or premiums paid on loans in such associations shall be deemed usurious.Equitable Building & Loan Ass'n v. Vance, 27 S. E. 274, 49 S. C. 402; Same v. Hoffman, 27 S. E. 692, 50 S. C. 303; Turner v. Interstate Building & Loan Ass'n, 27 S. E. 947, 51 S. C. 33.

4. Place of Contract.

[a] (U. S. C. C., Tenn., 1898) A contract which would be usurious in the state where it is sought to be enforced is not subject to the usury penalties

of that state if it is not usurious under the law of the state where it was made.-Eastern Building & Loan Ass'n v. Bedford, 88 Fed. 7.

[b] (Ala. Sup. 1892) In a suit by a building and loan association, incorporated in Minnesota and having its place of business there, to foreclose a mortgage given to it by a stockholder residing in Alabama to secure a loan to her, the act by which she became a member must be deemed to have been performed in Minnesota, and her membership fee, together with an attorney's fee, expressly provided for in case of the foreclosure of the mortgage, is collectible, though the contract provides for an usurious rate of interest under the laws of Alabama.-Falls v. United States Savings, Loan & Building Co., 13 South. 25, 97 Ala. 417, 24 L. R. A. 174, 38 Am. St. Rep. 194. [c] (Ky. App. 1896) A resident of Kentucky became a member of a foreign loan association doing business there, and procured from it a loan on his note, secured by mortgage on land in Kentucky; the note being dated and made payable at a place in the domicile of the association, and reciting that it was made with reference to and under the laws of its domicile. Held a domestic contract.-United States Saving & Loan Ass'n v. Scott, 34 S. W. 235, 98 Ky. 695.

[d] (Neb. Sup. 1899) Where a mortgage to a South Dakota building and loan association was executed through the lender's local agent in Nebraska on property there situated, and the money was there paid to the borrower, the mortgage was a Nebraska contract, notwithstanding a provision that it was made with reference to and under the laws of the territory of Dakota, where all payments were to be made.-Building & Loan Ass'n of Dakota v. Bilan, 81 N. W. 308, 59 Neb. 458.

[e] (N. C. Sup. 1893) A contract forbidden by the usury laws of the state where made will be deemed usurious, though payable in another state, where it would not be usurious.-Meroney v. Atlanta Nat. Building & Loan Ass'n, 17 S. E. 637, 112 N. C. 842.

[f] (Tex. Civ. App. 1899) A foreign loan association, allowed by the laws of the state where it was organized to take any amount of interest on loans. obtained a permit to do business in Texas, and made a loan to a citizen of the state, secured on lands in Texas, and providing for interest which was usurious in Texas. The deed of trust did not stipulate, in terms, for any particular place of payment. The by-laws allowed payments to be made to a secretary of a local board in the state of Texas, but provided that he should not be deemed the agent of the corporation in receiving such payments. Held, that the contract was usurious, as governable by the laws of Texas.-Southern Building & Loan Ass'n v. Atkinson, 50 S. W. 170, 20 Tex. Civ. App. 516.

[g] (Va. Sup. Ct. App. 1898) Where parties entered into a contract lawful in New York, but usurious in Virginia, the presumption is that they contracted with reference to the laws of the former state.-Ware v. Bankers' Loan & Investment Co., 29 S. E. 744, 95 Va. 680, 64 Am. St. Rep. 826.

5. Place of Performance.

[a] (U. S. Sup., Tenn., 1901) A contract of a foreign loan association, which is not usurious under the laws of the state where the association is domiciled and where the obligations are payable, cannot be attacked for usury in the state where the land mortgaged is situated.-Bedford v. Eastern Building & Loan Ass'n, 21 Sup. Ct. 597, 181 U. S. 227, 45 L. Ed. 834.

[b] (U. S. C. C. A., Tex., 1895) A bond executed and delivered in one state, but made payable in another, is governed, as to the objection of usury, by the laws of the latter state, unless such place of payment was fixed for the purpose of evading the usury laws.-Building & Loan Ass'n of Dakota v. Logan, 14 C. C. A. 133, 66 Fed. 827.

[e] (U. S. C. C. A., Tex., 1899) Where the by-laws of a building and loan association provide that all payments shall be made to its secretary at the office of the association in the state in which it is incorporated, and a bond and mortgage executed to the association by a borrowing stockholder each contain a stipulation that it is to be governed by the laws of such state, the