United States, Kuntz v. (C. C. A.). 988 Vigo, The (D. C.) 586 United States, Leary v. (C. C. A.). 246 Virginia Bridge & Iron Co., Cavender v. 444 (D. C.)... 877 United States, Panther v. (C. C. A.)... 989 Weber Electric Co. v. Connecticut Electrical Mfg. Co. (D. C.). 429 261 Weems v. United States (C. C. A.). 57 872 United States. Pierce v. (C. C. A.). United States, Pittsburgh, C., C. & St. . R. Co. v. (Č. C. A.).. 514 Weinstein, Wallace v. (C. C. A.). 625 L. Wells v. United States (C. C. A.). 605 265 United States, Rietz v. (C. C. A.). 731 West Helena Consol. Co., McCray v. (C. C. 989 United States v. Robertson (D. C.). 195 331 Westinghouse Electric & Mfg. Co. v. Binghamton R. Co. (C. C. A.). 726 397 990 255 643 White, Jung Back Sing v. (C. C. A.).... 416 752 724 W. H. Parsons & Co., Harrington v. (D. 860 C.) 774 689 732 W. H. Parsons & Co., Worcester Post Co. v. (D. C.). 774 635 Wilkins, New York, P. & N. R. Co. v. (C. 42 Williams v. Newman (D. C.). 353 372 Winchester Repeating Arms Co., Demarest v. (D. C.).. 162 United States, Waters v. (C. C. A.). 991 57 Witherspoon & Sons v. Postal Telegraph & Cable Co. (D. C.). 758 605 509 95 Worcester Post Co. v. W. H. Parsons & Co. (D. C.)..... 774 United Zinc & Chemical Co. v. Van Britt (C. C. A.).. CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS AND THE DISTRICT COURTS KEITH LUMBER CO. v. HOUSTON OIL CO. OF TEXAS et al. No. 3220. 1. RECEIVERS 204-RECEIVERSHIP SUIT-DISCHARGE-ANCILLARY SUIT. Decree discharging receivers of lumber company and an oil company, and turning their properties over to the companies under recited terms, did not destroy the jurisdiction of the court, which had previously attached, over an ancillary suit by the receiver of the oil company against a second lumber company, which had been made a party to the receivership suit by an amended bill. 2. RECEIVERS 178-ACTIONS-PARTIES-SUIT FOR TIMBER. Lumber company held not a necessary party to suit ancillary to receivership proceedings by receiver of oil company against a second lumber company for the timber on certain land as to which the first lumber company had a stumpage contract, which did not place ownership of the timber in it. 3. APPEAL AND ERROR 684(4)—REVIEW-MOTION TO DISMISS-ABSENCE OF EVIDENCE. Where testimony, on which the action of the District Judge in denying motion to dismiss suit on ground its subject-matter had been destroyed was based, is not in the record, the Circuit Court of Appeals cannot determine that the action taken was erroneous. 4. ACKNOWLEDGMENT 52-SIGNING AND DELIVERY-INFERENCE FROM ACKNOWLEDGMENT. The acknowledgment of a deed, as recited in the record, carries with it the necessary inference of signing, and delivery also may be inferred from acknowledgment, though it is not a necessary inference. 5. DEEDS 208(1)—DELIVERY-SUFFICIENCY OF EVIDENCE. In suit by a receiver for an oil company and a lumber company against another lumber company for the timber on certain lands, evidence consisting of the fact of payment, of the signing of the deed. of the fact of acknowledgment, and the duty and obligation under which the grantor was at the time to hold the deed for the plaintiff lumber company, held sufficient to support finding of delivery. 6. ESTOPPEL 37-AFTER-ACQUIRED TITLE. A deed using the words "grant, sell, and convey," not "quitclaim," and conveying property by specific description, not merely the "interest" owned by the grantor, was effective to pass an after-acquired title. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 257 F.-1 7. PROPERTY 9-TITLE-SUFFICIENCY OF EVIDENCE. In suit by receiver of an oil company and a lumber company against another lumber company for the timber on certain lands, evidence held sufficient to authorize finding that title at the time of institution of the suit was in plaintiff lumber company and the oil company. 8. ESTOPPEL 3(1) EVIDENCE 272-ESTOPPEL BY RECORD-DECLARATIONS AGAINST INTEREST. Excerpts from a pleading introduced by defendant in an equity suit are to be taken as evidence of the efforts of the several parties to procure advantage over their adversaries, rather than as matter in estoppel, or as declarations against interest, to be taken advantage of by one not a party to the suit. 9. APPEAL AND ERROR 1051(1)-HARMLESS ERROR-EVIDENCE. The erroneous introduction in evidence of a decree was harmless, where there was ample evidence outside of the record to show the fact of title for which the decree was used. 10. VENDOR AND PURCHASER CLASS-BURDEN OF PROOF. 242-DEEDS-REGISTRATION-PROTECTED In view of Rev. St. Tex. 1911, art. 6824, requiring registration, but declaring a deed valid, though unrecorded, as to all subsequent purchasers with notice or without valuable consideration, so making it void only as to purchasers for value without notice, a person undertaking to establish the invalidity of a deed has the burden to prove he is within the protected class. 11. VENDOR AND PURCHASER 244-INNOCENT PURCHASER FOR VALUE-SUFFICIENCY OF EVIDENCE. In suit by receiver of an oil company and a lumber company for the timber on certain land, evidence held to justify finding that defendant lumber company was not an innocent purchaser for value. 12. LIS PENDENS 24(1)—RECEIVERSHIP SUITS-INVENTORY AND POSSESSION BY RECEIVERS. Where the timber on certain land had been inventoried as part of the estates of a lumber company and an oil company, involving which receivership suits were pending, and the timber was in the custody of the receiver, it could not be purchased from third person without notice on account of the lis pendens. 13. APPEAL AND ERROR IMPROPER EVIDENCE. 931(6)-PRESUMPTIONS FAVORING COURT BELOW Where the trial was by the court, it will be assumed that no improper evidence was considered. 14. COVENANTS 2-WARRANTY OF TITLE NOT OWNED-RIGHT OF GRANTEE. There is nothing to prevent a person from warranting title to land that he neither owns nor claims, and the grantee had a right to stand on the terms of his deed. Appeal from the District Court of the United States for the Southern District of Texas; Walter T. Burns, Judge. Suit by the Houston Oil Company of Texas and its receiver against the Keith Lumber Company and others. From judgment for plaintiffs, defendant company appeals. Judgment modified, and, as modified, affirmed. C. L. Carter, of Houston, Tex. (Geo. D. Anderson, of Beaumont, Tex., W. A. Parish, of Houston, Tex., Anderson & Masterson, of Beaumont, Tex., and Baker, Botts, Parker & Garwood, of Houston, Tex., on the brief), for appellant. H. O. Head, of Sherman, Tex., and T. M. Kennerly and E. E. Townes, both of Houston, Tex. (Fred L. Williams and Kennerly, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (257 F.) Williams, Lee & Hill, all of Houston, Tex., and Head, Dillard, Smith, Maxey & Head, of Sherman, Tex., on the brief), for appellees. Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge. BATTS, Circuit Judge. Suit was by the Houston Oil Company of Texas and its receiver against Keith Lumber Company and others, for the timber on section 102, certificate 120, T. & N. Ó. Ry. Co., in Hardin and Jefferson counties, Tex. C. M. Votaw, patentee, is the common source of the respective claims to title. After the timber deed from Votaw (acknowledged in 1902), under which complainants claim, but prior to its registration in 1906, Votaw made a conveyance of the land in 1905, under which Keith Lumber Company asserts title, questioning the execution and validity of the prior deed, and the acquisition of rights under it by complainant, and claiming to be an innocent purchaser for value, without notice. Matters for consideration are: I.-Jurisdiction. II. Parties. III.-Dismissal. IV. Title of Houston Oil Company. (1) Deed from Votaw to Kirby Lumber Company. (2) Sale before acquisition. (3) Validity of deed. (4) Passage of title from Kirby Lumber Company to Houston Oil Company. (a) Contract with Kirby. (b) Trust relation of Kirby Lumber Company. (c) Pleadings and decree in equity No. 54. V. Title of Keith Lumber Company. VI. Defendant as innocent purchaser for value. (1) Burden of proof. (2) The evidence. . (a) Testimony of Kirby and Keith. (b) Contract of Keith Lumber Company with J. N. Votaw and Turner. (c) Lis pendens. VII.-Errors assigned as to admission of evidence. VIII.-Liability on warranty. [1] I.-Jurisdiction. This suit, instituted in the Southern district of Texas, involves title to real property situate in the Eastern district of that state. None of the defendants resides in the Southern district. On January 28, 1904, the Maryland Trust Company filed suit in the Southern district against the Kirby Lumber Company and the Houston Oil Company of Texas for debt and foreclosure, and prayed for appointment of receivers for the companies. On March 17, 1904, permanent receivers were appointed for each company. This instant suit is ancillary to the main receivership case. The statement of appellant that it was not made a party until after the prop erty had been withdrawn from the custody of the court and ordered returned to its owners is not sustained by the record. It appears that the Keith Lumber Company was impleaded by an amended bill, filed on December 29, 1908. On July 28, 1908, a decree was entered fixing the rights of the parties in the receivership suit, but the receivers. were not discharged and the properties were not redelivered. On the 15th of April, 1909, an order was made for the delivery of the property. The decree specifically provided that the Houston Oil Company should receive the property subject to all claims, etc., then existing under the decree of July 28, 1908, or which might thereafter be made against the receiver, arising out of the receivership, and the court retained jurisdiction over all of the properties and the parties for the purpose of determining the demands, etc., against the receivers arising out of the receivership. It was also provided that nothing in the decree should affect the status of any pending or undetermined litigation, but that such litigation might continue to final determination in the name of the receiver. That the court had jurisdiction at the time of the institution of the suit is determined by Gordon v. Dillingham, 158 Fed. 1019, 86 C. C. A. 672, White v. Ewing, 159 U. S. 36, 15 Sup. Ct. 1018, 40 L. Ed. 67, and Jenkins v. Dillingham, 220 U. S. 620, 31 Sup. Ct. 723, 55 L. Ed. 613. The decree discharging the receivers and turning the property over to the owners under the recited terms must be held not to have destroyed the jurisdiction which theretofore attached. [2] II.-Parties.-Appellant contends that the Kirby Lumber Company is a necessary party. The allegation of the complaint is to the effect that, at the time of the appointment of receivers, the Oil Company owned and was in possession of the property involved, and that it passed into the control of the receivers. It is also alleged that there is growing and standing yellow pine timber, covered by a "stumpage contract" between the Houston Oil Company and the Kirby Lumber Company, under which the latter has the right to cut the timber growing upon the land and convert it into lumber, etc. Such an allegation is not equivalent to an allegation of ownership, nor does the stumpage contract referred to place the ownership of the timber in the Kirby Lumber Company. The contract gives the Kirby Lumber Company the right to cut 8,000,000,000 feet of timber from the very extensive land holdings of the Oil Company, upon payment of the price and compliance with other conditions set forth. At most the contract is an executory one, under the terms of which the Lumber Company has the right to acquire timber, but the contract may be fulfilled without taking timber from this land. The right with reference to the land is not such as to make the Lumber Company a necessary party. [3] III.-Dismissal.-The appellant contends that the subject-matter of the suit has been destroyed, and that therefore the suit should be dismissed. This motion was tried by the District Judge and determined adversely to appellant. The testimony upon which this action was based is not in the record, and it is impossible to determine that the action taken was erroneous. The record shows that timber has been cut, but does not show that all of it has been removed, nor |