and 'a:fllxl!d, hIs seal, and the Morley 'FinIshing MacblneConmany.hal caused'. this .Instrument .to be slgned,.and Its corporate. seal W, be hereunto affixed byWm. B. Lewis, Its presIdenT. and John F. Springfield, its trt¥UIl\rer, thereunto duly authorized. In dupllcate,the day and Year tlTst,above written. ) ,·l\iorley Finishing MacbIne. Company, [Cotllorate Seal.] By Wililam B, Lewis, President, John F. Springfield, Treasurer.
The restraining order (which by, astlbsequent order of, the court became a preliminary injunction) was in part as
We therefore, In consideration thereof, enjoin and command.,you, each and every of you, that from and Immediately after the receipt and notice of this. our wrIt, by you,or any of you, you shall not sell, assign, transfer, or incumber, or otherwise Intermeddle with the tltle to any of the businesl! and property used therein, and patents and patent rights subject of the contract between you and the said Finishing Machine Company of Octoher 0, 1897, and particularly shall Dot withdraw :aoy money from said bnsiness, nor sell, assign, transfer; Incumber, or otherwise Intermeddle with the title to any of the following described patents and Inventions, or the !'ights therein: [Then followed along list of patents and pending appllcations for patents.]
William Quinby, for appellant Frederick P. Fish and Robert F. ;tIerrick, for appellee. Before PUTNAM, Circuit Judgf:!, and BROWN and LOWELL, District J lldges. ', PER CURIAM. With reference to the Jetter of Mr. Sinclair, which it is. admitted must be read into the alleged agreement which the plaintiff seeks to enforce; it appears to the court that the expresIlion "cash for his merchandise" is s,o indefinite as to leave the alleged agreement so.vague that it is doubtful whether an equity court can compel its enforcement; and, moreover, it is doubtful whether the instrument of conveyance submitted'to the defendant f()r execution by him c()ntained a proper offer to carry out the contract asIt ",as supplemented by that letter; further, it appears very doubtful whether the alleged agreement covers the patents, relating to hinged lasts, in reference to whichanapparently fair controversy has arisen between the On the Whole, theeourtis of the opinion thll:t"tlJ.e case,as :gresented,is sO,doqbtful on the merits that an injunction of the broad character granted below, involving the defendant i;n so much inconvenience and possible loss, oug.ht not, in this,case, to be The order appealed from.'is reversed,and the costs of this CQurt are.'awarded to the '. , :' , ,
et a1. T. P.J.WILLIS & BRO.ll P. J. WILLIS & BRO; v. OAKES et'aJ: (0Irc111t Court of Appeals" Fifth Clrault., iq;: 1<8nS.,:
'.. No. 671.
'.' '" . '
ADVERSE POSSESSION---:COLOR OF T,rl'r,E. . . , . , , ' ' ' ' ' .
"Title." as the 'l'exas nrescrjbln/f three-Years Ilm!ta.tlon, means a chain of from or unuer, sovereignty the soil; and "color of title" means acol1secUlive chain' .trans.fer down to the person in possession, without, however, being regnlar; as where one June 2d,
Petition for rehearing filed May 23d, and
RICE Vo P. J. WILLIS
of the memorials or muniments is not registered or duly registered, or Is only In writing, or such like defects as do not Include a want of intrinsic fairness and honesty.
VENDOR AND VENDEE-BoNA FIDE PURCHASER-DESTROYED RECORDS.
A bona fide purchaser for "alue, without notice, of a tract of land, part of which has been conveyed to another by a deed the record whereof has been destroyed, and not replaced as provided by the statute, acquires a good title; but where, on suusequently receiving notice of the prior deell, he sells the land, and conveys it by a deed of special warranty, containing a reservation of the part conve;yed by such previous deed, thus showing his waiver of previous notice, this protects the title of the grantees under the previous deed, so that his executors would have no power over the part conveyed by it.
Error and Cross Error to the Circuit Court of the United States for the Northern District of Texas. John C. Winter, Pressley K. Ewing, and H. F. Ring, for plaintiffs in p.rror Rice, House, and Oliver. Eugene Williams, for P. J. Willis & Bro. D. A. Kelley, for defendant in error R. A. Oakes. Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge. McCORMICK, Circuit Judge. This is a Texas real action to try the title to a tract of land described in the pleadings. The parties, by stipulation in writing, waived a jury. and submitted the case, on law and fact, to the decision of the judge. Reducing the finding of facts to working 'form, it shows that one Louis Moore was the common source of title through and under whom all the parties claim; that on February 1, 1875, Louis Moore conveyed to one E. H. Graham, trustee, the north half of the Morgan league, including the land in controversy, to secure a debt specified in the conveyance; that this trust deed was duly foreclosed, and the land sold according to the terms of the deed, at which sale, on September 8, 1881, one R. S. Willis became the purchaser; that, prior to the making of the trust deed, Louis Moore had deeded the land in controversy to A. Groesbeck, W. J. Hutchins, and W. R. Walker, trustees, by deed dated August 24, 1872, and duly recorded September 6, 1872; that the trustees mimed took for the benefit of the Houston & Texas Central Railway Company, and the trustees, parties to this suit, are the successors to the grantees in this deed; that the book in which the record was made was destroyed by fire on October 12, 1872, and the deed was re-recorded on June 13, 1893; that Willis had no notice of this conveyance at the time he purchased the north half of the Morgan league; that he was a purchaser for value, in good faith, and his purchase vested in him the title to the land in controversy; that on February 9, 1884, Willis executed and delivered to R. A. Oakes, for an adequate consideration, a deed to a part of the Morgan league,reciting in the deed that "this conveyance includes the north half of said league, less a certain portion sold to the Central Railway Company, lying at or near Perry Station"; that the land mentioned in and reserved out of this cOIlveyance by R. S. Willis to R: A.Oakes, under which conveyance Oakes claims title to the
87 FEDERAL REPORTER.
land in controversy, istbe landtbat was conveyed by Louis Moore to Baker, Rice, Hutchins, and trustees (whose title the defendants House, Rice, and Oliv,er hold), by deed of date August 24, 1872; that this last-named deed. was duly recorded in Book K of the Records of Deeds of Falls. County, in which county the land is situated, on September 6, 1872; that the land so conveyed by the deed last named was 'surveyed and marked by a civil engineer for the railway company and said trustees in the year 1872, together with one Gill, agent for Moore; that, when Oakes was about to purchase the land from Willis, he demanded a general warranty deed from Willis, which demand was refused, and Willis conveyed to Oakes by deed with special warranty against claims thereto arising by, under, or through him; that the deed of Willis to Oakes can· veyed the north half of the Morgan league, less a certain portion sold to the Central Railway Company, lying at or near Perry Station, and was so expressed on the face of the deed; "that the tract so excepted is the land conveyed by Louis Moore, but it is not found that Willis meant this tract in making the reservation in -his said deed." The last clause of the finding just quoted, to the effect that it is not found that 'Willis meant this tract in making the reservation in his said deed, would be somewhat confusing if the fact had not been so distinctly found that the land in controversy conveyed by Louis Moore to the trustees Baker, Rice, Hutchins, and Groesbeck is the land so excepted out ,of Willis' deed for the north half ()f the Morgan league to Oakes. That being the fact clearly found, the deed itself best shows what Willis meant in, making the reservation. R. S. Willis died in 1892, leaving a will, which was duly probated, and in which he named executors, and clothed them with ample powers for independent action; and the executors named,having accepted the trust, and having duly qualified as such executors, conveyed the land in controversy to P. J. Willis & Bro. (incorporated), the plaintiff below, and plaintiff in error here. The trial judge states as conclusion of law:
"(1) The plaintiff Is not entitled to recover against either of the defendants, trustees, or the defendant Oakes. If, upon any conceivable theory, the plaintiff has any claim whatever to the land In controversy, such claim Is barred as to the defendant Oakes by the three and five years' statutes of limitation. "(2) As between the defendants, trustees, F. A. Rice, T. W. House, and W. C. Oliver, on the one hand, and the defendant Oakes on the other, the trustees are not entitled to recover again,.st Oakes. Oakes is not an innocent purchaser for value, without notice as. to the trustees, If such defense be available In an action at law. But, In tbe judgment of tbe court, the proof plainly sbows that as to Oakes the claim of said trustees, defendants, Is barred by tbethree and five years' statutes of limitation. "(3) Judgment will be rendered that the plaintiff take nothing by Its suit as against tbe saId trustees, defendantfj, and the said defendant Oakes, and that, as to such defendants, the costs. be adjudged against the plaIntiff."
By the term "title," as used in the statutes of Texas prescribing what is called the "three-years limitation," is meant a regulllr chain of transfer from or under the sovereignty of the soil; and by "color of title" is meant a consecutivecpain ,of such transfer down to snch person in possesl'lion, without bEij:p.g ,.regular, as if one of the me-
RICE V. P. J. WILLIS & BRO.
morials or muniments be not registered or not duly registered, or be only in writing or such like defect as may not extend to or include the want of intrinsic fairness and honesty. To support the five- · years limitation, the party setting it up is required to show that he is claiming under a deed or deeds duly registered. Rev. St. Tex. 1895, arts. 3341, 3342. As the land in controversy was excepted out of Willis' conveyance, covering all the other part of the north half of the Morgan league to Oakes, he was not able to show, and did not show, either title or color of title or deed of any kind to the land in controversy, and therefore did not make out either his plea of three years' or of five years' limitation. We concur with the judge of the circuit court in holding that the corporation, P. J. Willis & Bro., claiming under and through the executors of R. S. Willis, cannot recover the land in controversy, because, while it appears from the findings of fact that the title to it did vest in R. S. Willis at the time of his purchase, in 1881, by reason of the fact that he became a purchaser of the whole half league for value, without any actual or constructive notice of the prior conveyance, his recitation in the deed to Oakes shows that, having subsequently received such notice, he put on the face of his special warranty deed to his vendee a reservation which protected the title of the trustees F. A. Rice, T. W. House, and W. C. Oliver, and put it beyond the power of his executors to convey any title thereto to the plaintiff below, the plaintiff in error herein. There being, therefore, no title remaining in the estate of R. S. Willis which his executors could convey to the corporation, P. J. Willis & Bro., and hence no title in that corporation, and there being no right, legal or equitable, in Oakes to the land in controversy, and no support whatever to his plea of three and five years' statute of limitation, by reason of this lack of any deed thereto, and the land having been, in good faith and for an adequate consideration, conveyed by Louis Moore, the common source of title, to the predecessors in the trust of the trustees F. A. Rice, T. W. House, and W. C. Oliver, the title has continued to be in the trustees for the benefit of the Houston & Texas Central Railway Company, and remains theirs in law and in equity. We conclude, therefore, that the judgment of the circuit court is not supported by the findings, and that the findings require that the judgment should be rendered in favor of the trustees F. A. Rice, T. W. House, and W. C. Oliver. It is therefore ordered that the judgment of the circuit court is reversed, and is now here reformed and rendered so as to vest the title to the land in controversy in the defendants, trustees, F. A. Rice, T. W. House, and W. C. Oliver.
ERSKINE et al. v. STEELE (CIrcuit Court, D. North Dakota, S. E. D.
May 28, 1898.)
CONSTITUTIONAL LAW-STATUTE V'AtIDATINGl!'ORMER INVALID CONTRACT.
RES J U D I C A T A . ·
In such case, the prior judgment. was no bar to the' subsequent action on the validated contract.
This was an action by the. administrators of Massena B. Erskine against Steele county, N. D., to recover on a county warrant. Newman&, Spaulding, for plaintiffs. F. W. Ames and George Murray, for defendant. AMIDON, District Judge. 'this' action is submitted to the court without a jury upon an. agreed statement of facts, which may be summarized as fQllows: TM,defendant, Steele county, was organized on the 23d day of June, 1883, of territory which had ,been pre, viol1s1y embraced in the of Traill and Griggs. Thereafter its board of commissioners employed 'one' E. J. McMahon to tran, scribe the records in the offices of the registers of deeds of the old counties affecting the title to real 'property situated in the new. The work was prepared by him pursuant to the contract, and on the 19th day of November, 1883, the defendant's board of commissioners au, dited and allowed his claimatthe sum of $2,010, and caused a county warrant to be issued to him for the 'amount of $2,680; the excess over the amount of the claim being for the purpose of making good the discount at which the warrants of the county were selling at that time. McMahon transferred the warrant to Massena B. Erskine, who thereafter brought an action upon it against the county, in which he recovered a judgment in the trial court, but the supreme court of the state, on appeal, reversed this judgment, and directed the lower court to dismiss the. complaint, with costs.' Judgment was entered accordingly in the trial. court, and that portion of it relating to costs was paid by the plaintiffs, who had been substituted in the action upon the death of the original plaintiff. The decision of the supreme c0tlrfwas based wholly upon the folloWing grounds: First, that, at the time the contract 'Was made with McMahon, the county commissioners had no power or authority. under the law, to make the same; and, second, that they had no power or authority to issue any warrant for a greater sum than the amount that was agreed to be paid for the services rendered. This decision will be found in 4 N. D. 339, 60 N. W. 1052. In the course of the opinion the court uses the following language:
"Whether the transcription made by McMahon would or would not possess any legal validity as notice or otherwise Is unnecessary to decide in this case,