Pao CONFESSO DECREE. A final :decree against defelidll!nt' UpOIl a,bill taken pro confesso chargIng in;frlngement of a patent wiUnot be vacated and defendant permitted is sufliclently excused, when: the been susmilled in other circuits, and' the answer submItted does Or any 'patent claimed to anticipate that in suit, nor llpeclfyilny time or place Where, or any party by whom, the inventI.ondes<lribed was evex: used, before application made for the patent. B.S:urL A on a. bill pro confesso cannot be vacated at subno apl)llcatioll was made at the term at WhICh it was 'rendered. . In EqUity. This was amotion by the city of St. Paul to vacate a. final decree rendered it upon a bill by Peter Stuart and others, tharging infringement of a patent, and to permit the defendan.t to answer.
STUART et atv.OITY OF ST. PAUL et at. . , Oourt, D. MlnnEl89W-t. Third Division. .' ;January. 27, 1894.)
Paul' Merwin,' LeonT.
complalJ;lants. , · for defendant the mty of St. Paul.
SANllORN, Circuit Judge. This is a motion to vacate a final decree rendered June 5, 1893, during the January, ,1893, term 01 this court, against the defendant the city of St. Paul upon a bill eharging:the infringement of a patent, and to permit the defendant to answer. The motion Ie denied for the following reasons: First. The patent on which the bill is based has been sustained after a contest in the cillcuit court for the eastern district of Pennsylvania in Vulcanite Co. ,v. ;American Co., 34 Fed., 320, and in the circuit· court for the district' of Maryland in Stuart v. Thorman, 37 Fed. 90. Conceding, for the 'purposes of this decision, that the neglect of· the corporation attorney is sufficiently excused by the affidavits filed, it must be presumed that the proposed answer of the city states every substantial defense it could interpose in this action. The answer has been carefully examined, and it does not refer to or plead any patent which is claimed to anticipate that in suit, nor does it specify any time or place where, or any party by whom, the invention. described in the patent was ever used before application was made.for the patent. Under this answer the only substantial defense is that the int'ention was not patentable. That question is so far foreclosed by the decision of the circuit courts already ren, dered that this court ought not to come to a different conclusion until all controversy is put at rest by a decree of the supreme court of the United States. ManUfacturing Co. v. Bancroft, 32 Fed. 590; Manufacturing Co. v. Spalding, 35 Fed. 67; Reed v. Railway Co., 21 Fed. 284 ; Celluloid Manuf'g Co. v. Zylonite Brush & Comb Co.. 27 Fed. 295. As it does not appear that the city of St. Paul ever had any substantial defense to this suit, there is no reason why thb decree· should be vacated.
YORE V. YORE.
Second. It is not in the power of this court to vacate this final decree in any event. It was rendered at the January term, 1893. No application to vacate or it was made at that term. Tbb nineteenth equity rule provides that:
"When the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the ent.ry of the order to take the bill pro confesso and such decree rendered shall be deemed absolute unless the court shall at the same term set aside the same or enlarge the time for filing the answer upon cau..-.e shown upon motion and a1Iidavit of the defendant."
The bill in this case was taken pro confesso, and the final decree entered in strict accordance with the rules and practice of this court. No rule of practice is hetter settled than that the United States circuit courts have no jurisdiction to vacate or modify final decrees in equity subsequent to the term at which they are rendered, except to correct formal or clerical errors. Bronson v. Schulten, 104 U. S. 415; Allen v. Wilson, 21 Fed. 881, and cases cited.
YORE et aI. v. YORE.
(Circuit Court, E. D. Missouri, E. D. July 14, 1894.)
Where land Is conveyed to a trustee for the sole and separate use of a married woman, giving her full power to sell and convey-the property, and it is provided that, in case she dies without disposing of the property by or will, the trust shall cease and determine, and the property shall revert to and vest in her husband, held that, on the death of the wife, the property being undisposed of, an equitable fee-simple title to the land vested in the husband. Where land is conveyed to trustee for the sole and separate use of a married woman, in trust to pay over to her the rents during her natural life, and no longer, with power on her part to dispose of the property, and it Is prOVided therein that, in case of her death without disposing of the property, then that the same shall be held by the t.rustee for the use and benefit of her children, held that, upon her death, the title to the property vested in the children; and the husband having entered into possession of the premises, claiming them as his own, and having held them continuously for a period of more than 10 years after the death of the wife, the right of entry of the children as remaindermen was barred.
2. SAME-STATUTE OF LIMITATIONS.
This was an action of ejectment by the plaintiffs, as the sole heirs of their father, William A. Yore, for the recovery of a one-sixth iIiterest in the premises in controversy.
William A. Yore, plaintiffs' father, was one of six children born of the marriage of Patrick Yore and Barbara Ann Yore. Barbara Ann Yore died intestate, April 21, 1876, leaving the property undisposed of. William A. Yore was born in 1847, and died November 9. 1886, so that, at the time of his mother's death, he was 29 years old. Patrick Yore died July 14, 1889, and by his will left nothing to the children of William A. Yore. Patrick Yore married defendant, May 24, 1879. By marriage settlement dated May 1879, he conveyed the premises in controversy to defendant for life. On the deatJ1 of Barbara Ann Yore, Patrick Yore entered into the possession of the premises, claiming them as his own, and so continuously held possession
FEDERAL' REROR1rEB t
:I.'he ip).'pl*fty,J.I!i OJ;1 of Eighth y ',r;:ttt , . '(lJ DeelffrOm MiclraeI'kelly td Ann Yore, dated January 12, 1857. This deed'conveyed' 37. feet to the trustee, begintQ the )lse ¥ore, trllst-First, to to Barbara ),.nnYQte. al;! her separate property; second, the property. in !luch lXIanner as said Barbara. n. ".:.Y.'.Q1'e,''.,ffiig.h.t.d.eSignate',said d.e,W. pro.V:ided tha . Lt".,i,.,f sa.id Barbara Ann l.wo,\!li! without ba,ving l1is,I!osed of t)le proper.fy:by.deed or last will, the property should revert ab801utety" to' Patrick Yore,' hIs .i;i¢irs and. assigns. As to this deed the plaintiffs contended that the absolute fee vested in l'ieQlainder to. Patrie». Y()te was of no force ,aJld principallJr,pn Green v., .Sutton, 50 Mo. 186. A$' to 'the of the,)Qt; relied UpoJ:l a deed from Thomas O'Flahe,rtY'to JamesMeegan,t1'ustee' pf Ann Yore, which conveyed the PrOilm3t in trust<for 1ihe801e',ands.eparate use of Barbara Ann Yore dUring, lIer: 'ute, aD.4· no 10ijge.r., t4) the rents, 'with p<lwer to sell, mortetc." In her del1t¥ '\Y-Jtbqut having dispOl'led of the property, then ,add property; was to, belleld .by the for the sole use and benefit of the clil.ldrEln ofPlttrick and Barbara Ann Yore.
C. P. Johnson, J. D. Johnson, D. P. Dyer, and M. F. Hunley, for plaintiffs. , H. D. Wood and A. J:P. for defendant.
Upon the 'propQsltiQn that the .eoutruction 'of. deeds must be upon the entire instrument, with a view to give effect to the whole instrument, and that, by the first deed above referred to, an equitable fee-simple title vested in Patrle1t'YorE:hm 'the death of Barbara Ann Yore, counsel cited Long v. Timms, 107 Mo;15l:9, 17 So W. 898; Bean v. Kenmuir, ·S6Mo. 666; Pollard v. Bank, 4 Mo.APP,408; Carr v. Dings, 58 Mo. 400j 'Harbison v.James, 90 CoHins, 95 Mo. 33, 7, S. Wi 461j Straat v, Mo. '411, 2: S,W/292j Munro Uhrig, 56 Mo;482j"jecko v. Taussig. 45 Mo. 167; Smith v: Bell, 6 Pet. 68; tJreffet v: Willman, 114 Mo. 107, 21 S. W. 459; LeWis v. Pitman, 101 Mo. 14 S. W. 52; Gaven v. Allen,100Mo.' 293, 13 S. W. 501; Wood v. Kice. 103 Mo. 329, 15 S. W. 623; Bassett v. Budlong (Mich.) 43 N. W. 984; Prior v.Quackenbush, 29 Ind. 475; Ball:terv. Bowyer, 19 Ohio St. 490; Chew v. Keller. 1001\10. 368;,13 So W. 395;, and other cases; and upon the proposition that, by the statute of uses, & fee may be mounted upon a fec, counsel cited Bean v. Kenmulr, 86 Mo. 666;Straat v. Uhrig, 56 Mo. 482; Wood v. Kice, 103M!>.; 329,15 S. W. 623j .Chew v.. Keller, 100 Mo. 368, lB S. \V. 395; 2Washb. ReIlJPtop. (2dEd.)',"251-, D"nwoodie v. Reed, 3 Sergo & R. 452; Saund.Uses,& Trusts, *a9, *150; Carver v. Jackson, 4 Pet. 1. As to the second deed, 'upon the proposition that Barbara Ann Yore took a life estate, andthat,iUpon her death tlle,trustee held the property, in trust for the children of Barbara Ann and Patrick Yore, COUlll;lCl cited R)J.bey v. Barnett, 12 Mo. 3; Reinders v. Kopplemann, 68 Mo. 482. That the statute of uses did not execute the use in Barbara Ann, see Pugh v. Hayes, 113 Mo. 432, 21 W. 23. That' Patrick Yorehadllo right to the possession as tenant by the Spencer v. O'Neill, 100 Mo. 49, 12 S. W. 1054. the adverse possession of Patrick Yore barred the right of entry of the chl1dren as remainder men, see Jackson v. Harsen, 7 Cow'. 323; Jones v. Johnson, 81 Ga. 293, 6 S. Eri81; King V. Rhew, 108 N. C. 600, 13 S. E. 174; Pattison v. Dryer (Mich.) 57N. W. 814; Busw. Lim. par, 401; Probst v. Trustees, 129 U. S. 182,.9 Sup. ,·Ct. 263; Houx v. Batteen, 68 Mo. 84; Bank v. Evans, 51 Mo. 335; Farrisv. Coleman, 103 Mo. 353,1& S. W. 767; Ewing v. Shannahan, 113 MQ.188, 20 S. W. 1065.
TRAYER, DistriGt Judge. It will be sufficierit,to advise counsel of the grou,nds on which the decision in this ca,se rests, to say that the court holds:
WESTERN MORTG. & INV. CO. V. GANZER.
First. That it is a doctrine in Missouri that a deed should receive such construction as to give effect to the obvious intentions of the parties thereto. Technical rules of· construction will be ignored, especially in deeds designed as family settlements, when they,do violence to the evident intent of the grantor. Bean v. Kenmuir, 86 Mo. 666, 671; Oook v. Couch, 100 Mo. 29-34, 13 S. W. 80; Lewis v. Pitman, 101 :1\'10. 281-292, 14 S. W. 52; Long v. Timms, 107 Mo. 512, 519, 17 S. ·W. 898. There can be no doubt, in view of the proviso contained in the habendum clause of the deed from. Michael Kelly to John E. Yore, trustee of Mrs. Barbara Ann Yore, ' of date January 12, 1857, that the grantor intended that the title to the lot therein described should vest in Patrick Yore in fee simple in the event that his wife, Barbara Ann, died without having disposed of the property either by deed or wiII. The deed must be construed as having vested in Barbara Ann a life estate, with power of disposal either by deed or will. Hence the plaintiffs cannot recover as to any of the property included in the Kelly deed. Second. The court holds that the action is barred by the statute of limitations, as to the property included in the deed from O'Flaherty to Meegan, trustee of Ann Yore, of date April 26,1852. Judgment for defendant on these grounds. .
WESTERN MORTG. & INV. CO., Limited, v. GANZER et aL (Circuit Court of Appeals, Fifth Circuit. June 12, 1894.) No. 231. 1.
HO}IESTEAD-ATTE}IPT TO INCU}fBER-SnWJ.ATED SALE TO RAISE VENDOR'S LJEN-NoTICE-l'RINCIPAJ. AND AGENT.
Knowledge by the agent of a loan company that an ostensible sale and conveyance of a homestead is merely colorable, and for the purpose of enabling the owners to raise money thereon by discounting the notes for the deferred payments with the loan company on the faith and securit;}· of the resulting vendor's lien, is not imputable to the company itself when the whole transaction is arranged by collusion between the agent and the owners for the purpose of perpetrating a fraud upon the company; and in such case the company is entitled to rely upon the vendor's lien. McCormick, Circuit JUdge, dissenting, on the ground that in the particula.r case there was no fraudulent intent, at least upon the part of the Wife; that it was doubtful on the evidence whether the supposed agent was not acting for himself alone, as principal; and that, under such circumstances, it was opposed to the historical and constitutional policy of the state of 'l'exas (in which the homestead was situated) to deprive the debtors of their homestead, even if they had intended to incumber it.
It is the settled rule in Texas that, where one advances money to pay off a vendor's lien upon a homestead, and the money is so applied. the creditor becomes subrogated to the vendor's lien. Hicks v. Morris, 57 Tex. 658, and Pridgen v. Warn, 15 S. W. 559,79 Tex. 588, followed.
Appeal from the Oircuit C<lurt of the United States for the Northern District of Texas.