(257 F.) objection, and the defendant answered, "Well, about one." The examination then proceeded in this way: "Q. You own quite a lot of city property? A. Well, I can't say that; I— I own some; yes, sir. "Q. What do you value your present property at? A. Well, I have never"Mr. Crump (counsel for Mr. Culver): I want to renew my objection, if your honor please. "The Court: Objection sustained. "Q. You recently bought one farm that you paid about something over $20,000 for, did you not? "Mr. Crump: I object to that as incompetent, irrelevant, and immaterial. "The Court: Sustained. "Q. You have two automobiles for private use? A. I have not "Mr. Crump: I object to that, if your honor please. "The Court: Sustained. "Q. What business have you been engaged in since 1915 to the present time? A. Real estate. "Q. You have accumulated all this money in the course of your business? A. Well, pretty well all of it. "Q. Most all of it? A. Yes. "Q. Well, just please state to the court how you acquired the principal part of the property that you have at this time. "Mr. Crump: I object as incompetent, irrelevant, and immaterial, and not tending to prove any issue in this case. "The Court: Sustained." The first ruling of the court, that it was competent, relevant, and material in this case for the government to show how many farms Mr. Culver owned, was clear error. That issue was not in the case, and the number of farms he owned had no relevancy to the issues that were in the case. The court properly ruled upon the next question, that the value of Mr. Culver's property was immaterial, and the subsequent questions of the counsel for the government, such as "You recently bought one farm that you paid something over $20,000 for?" and "You have two automobiles for private use?" constituted a clear and injurious abuse of the right of examination of this witness. The entire examination upon this subject was clearly inspired for the purpose of, and intended to lodge in the minds of the jury by insinuation, the idea that Mr. Culver had accumulated property by means of the alleged fraudulent scheme charged in the indictment. It was error to enter upon the examination, it was error to permit any evidence on the subject, and the error here permitted cannot fail, in our opinion, to have prejudiced the defendant in the trial of his case. The judgment below is accordingly reversed, and the case is remanded to the court below for a new trial. 257 F.-5 MCGREW v. BYRD. (Circuit Court of Appeals, Eighth Circuit. March 29, 1919.) In the federal courts one cannot recover land in an action of ejectment on an equitable title only. In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge. Action at law by Abraham R. Byrd against Elias Vincent McGrew. Judgment for plaintiff was reversed on error. 255 Fed. 759, — C. C. A. On petition for rehearing. Denied. John T. McKay, of Kennett, Mo., for plaintiff in error. Robert Burett Oliver, of Cape Girardeau, Mo. (Robert Burett Oliver, Jr., and Allen Laws Oliver, both of Cape Girardeau, Mo., on the brief), for defendant in error. Before SANBORN, Circuit Judge, and TRIEBER, District Judge. TRIEBER, District Judge. In an opinion filed January 15, 1919, the judgment of the District Court was reversed on a number of grounds, and the cause remanded, with directions to grant a new trial. One of the grounds upon which the cause was reversed was that the court erred in granting a peremptory instruction to the jury to return a verdict for the plaintiff, although there was substantial evidence that at the time the deed to William Pruett, under whom the defendant in error claimed title, was executed by Dunklin county, Mo., he was dead, and we held that "As there was substantial evidence to warrant a finding by the jury that William Pruett, the grantee of the plaintiff, and under whom plaintiff claims title, was, at the time the patent was issued by the county court, dead, the court erred in refusing to submit the case to the jury under proper instructions on that issue." A request for an instruction to that effect had been made by the plaintiff in error. This ground of reversal is not questioned by counsel in his petition, nor in the brief filed with the motion for rehearing. This alone necessitates a denial of the petition for rehearing. But as the cause will have to be retried, and the trial court will be bound by what was determined by this court on the admission of evidence which had been objected to at the trial by the plaintiff in error, and by the court overruled, we deem it proper to pass upon these points raised by the petition for rehearing. In our opinion we held that the court erred in admitting a certified copy of the register's certificate of purchase by William Pruett, holding that there is no statute of the state of Missouri requiring such a record to be kept, citing Nall v. Conover, 223 Mo. 477, 122 S. W. 1039, and Whitman v. Giesing, 224 Mo. 600, 123 S. W. 1052, to sustain our ruling. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & indexes (257 F.) Another ground upon which we held that the certified copy of the register's certificate of purchase by William Pruett was inadmissible is that under the statute, regulating the sales of swamp lands, the certificate of the register is merely evidence of the fact that an application for the purchase of the lands had been made, but that the purchase money could only be paid and received by the receiver. We said: "A person may apply to the register to purchase the lands, but until the purchase money has been paid to the receiver, and receipts therefor issued in triplicate, no patent could be issued by the county court." Counsel now claim that the Missouri cases cited by us have since been overruled by the Supreme Court of that state in Mosher v. Bacon, 229 Mo. 338, 129 S. W. 680, and Russ v. Sims, 261 Mo. 27, 169 S. W. 69. We cannot agree with counsel in this contention. These were equitable actions to quiet title under the statutes of the state of Missouri. In neither of these cases were the cases cited by us in the opinion referred to. In Mosher v. Bacon the court held that as the evidence was undisputed that the original patentee of the lands in controversy had paid the full purchase price therefor to the county, and complied fully with all the provisions of the statute, he had an equitable title to the lands. The court held: "The equitable title is at least passed, for the purchase money is paid, and the state cannot transfer her title, which is a mere naked legal title, to another." This was followed in Russ v. Sims, where the receiver's receipt for the purchase money was also introduced. In the case at bar no evidence of payment to the receiver was attempted to be introduced. But this is not an action to quiet title, but strictly an action at law of ejectment. That one cannot, in the national courts, recover lands in an action of ejectment on an equitable title only, is well settled. Langdon v. Sherwood, 124 U. S. 74, 8 Sup. Ct. 429, 31 L. Ed. 344; Johnson v. Christian, 128 U. S. 374, 9 Sup. Ct. 87, 32 L. Ed. 412; Schoolfield v. Rhodes, 82 Fed. 153, 27 C. C. A. 95; Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 Fed. 199, 107 C. C. A. 93. And this rule prevails in the state of Missouri. Ables v. Webb, 186 Mo. 233, 85 S. W. 383, 105 Am. St. Rep. 610; Martin v. Kitchen, 195 Mo. 477, 93 S. W. 780. Nor does Russ v. Sims sustain the contention that the register's record of applications for the purchase of swamp lands, or a certified copy thereof, is admissible in evidence. What the court did hold was that, as the act of 1901 (Laws of Missouri 1901, p. 251), known as the Carlton Act, and the act of 1907 (Laws of Missouri 1907, p. 271), made the abstracts prepared by one Carlton from the register's and receiver's books, which were at the time supposed to have been destroyed, prima facie evidence of land titles in Pemiscot county, the original books from which the abstracts were made, when found, were also admissible. The court clearly based its decisions upon those special acts. Had the court intended to overrule its former decisions, as claimed by counsel, it certainly would have so stated, especially in view of the fact that the opinion in Russ v. Sims was written by the same judge who wrote the opinion in Whitman v. Giesing. The petition for rehearing is denied. ÆTNA INS. CO. et al. v. DAVIDSON S. S. CO. (two cases). DAVIDSON S. S. CO. v. BACON. (Circuit Court of Appeals, Seventh Circuit. December 17, 1919.) No. 2455. 1. APPEAL AND ERROR 1012(1)-FINDINGS OF FACT-REVIEW. Where trial judge saw and heard the witnesses, findings upon issues of fact will not be set aside, unless the cold type in the record demonstrates findings either were unsupported by the evidence, or were made in the face of a preponderance to the contrary. 2. WHARVES 20(2)—WHARFINGER'S LIABILITY FOR DAMAGES TO VESSELS. Though a wharfinger is not a guarantor of safety, he must use reasonable diligence to ascertain the condition of the berths into which he invites vessels, and a navigator has the right to assume that such care has been exercised, and a wharfinger is liable for damages occasioned by a submerged. obstruction that was close enough to the dock to be reached by vessels of usual length lying at the dock, and which reasonable diligence on his part would have disclosed. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Libels by the Etna Insurance Company and another against the Davidson Steamship Company and by the Steamship Company against E. R. Bacon, consolidated. From a decree in favor of the Steamship Company, the Insurance Company and others and respondent Bacon appeal. Affirmed. Charles E. Kremer, of Chicago, Ill., for appellants. Before BAKER, ALSCHULER, and EVANS, Circuit Judges. BAKER, Circuit Judge. Appellee's schooner went to appellant Bacon's elevator at South Chicago to be loaded with corn destined to Buffalo. While at the elevator dock she sprang a leak, and the cargo was somewhat damaged. Appellants, one the owner and the others the insurers, who had paid part of the loss on the cargo, alleged that the leak was due to the unseaworthiness of the schooner and to improper loading by appellee. According to appellee's libel against Bacon, owner of cargo, elevator, and dock, the loading, which was properly done, lowered the schooner so that her keel rested upon and was spilt by a submerged obstruction. On final hearing of the consolidated cases the District Court dismissed appellants' libel, and entered a decree in appellee's favor for the damages to the schooner. [1] As the trial judge saw and heard the witnesses, his findings For other cases see same topic & KEY-NUMBER in ali Key-Numbered Digests & Indexes (257 F.) upon the issues of fact will not be set aside, unless the cold type in the record demonstrates that a material finding either was unsupported by evidence or was made in the face of a clearly ascertainable preponderance to the contrary. Royal Exchange Assurance v. Graham & Morton Transp. Co., 166 Fed. 32, 92 C. C. A. 66; Monongahela River Consol. Coal Co. v. Schinnerer, 196 Fed. 375, 117 C. C. A. 193. [2] Our study of the reported testimony leaves us under the conviction that the schooner was staunch and seaworthy when loading commenced; that loading was properly conducted; that there was a submerged pile somewhat beyond the limits of Bacon's dock, but so near thereto that vessels of usual length, lying at the dock, would extend to that point; that the obstruction was unknown to appellee; that, though Bacon was also unaware of its existence, reasonable diligence on his part would have disclosed the danger; and that the damages to the schooner and her cargo were wholly due to the submerged obstruction. Though a wharfinger is not a guarantor of safety, he must use reasonable diligence to ascertain the condition of the berths into which he invites vessels, and the navigator has the right to assume that such care has been exercised. Smith v. Burnett, 173 U. S. 430, 19 Sup. Ct. 442, 43 L. Ed. 756; C. F. Harms Co. v. Upper Hudson Stone Co., 234 Fed. 859, 148 C. C. A. 457. The decree is affirmed. HIMES v. SCHMEHL. (Circuit Court of Appeals, Third Circuit. March 28, 1919.) No. 2427. 1. PARTIES 19 JOINT CONTRACT-JOINDER OF OBLIGEES. Where a contract is joint, and not several, all the joint obligees or covenantees who are alive must be joined as plaintiffs. 2. TENANCY IN COMMON 55(3)—ACTIONS EX DELICTO-JOINDER. Tenants in common must join in actions ex delicto for an injury to their common property, though it be real estate, because the damages belong to them jointly. 3. EQUITY 105-PARTIES-CONTRACT-JOINT REMEDY. The rule that, where the contract is joint, so also is the remedy, likewise prevails in equity. 4. EQUITY 103-DECREE IN ABSENCE OF NECESSARY PARTY. A decree in equity may not be made, in the absence of a party whose rights must necessarily be affected. 3. COURTS 310 JURISDICTION-NONJOINDER OF NECESSARY PARTY. Bill by one of two co-owners and lessors of a graphite mine for nonpayment of rent, breach of covenant for good mining, and removal of the property of the lessors, was properly dismissed, where brought by one lessor only, though the joinder of the other would oust the jurisdiction of the court as to the parties before it, despite equity rule 39 (198 Fed. xxix, 115 C. C. A. xxix). 6. PARTIES ACTIONS. 15-JOINT CAUSE OF ACTION-JOINDER OF SEPARATE LEGAL Where one of two joint lessors sues alone improperly in equity without joining his colessor, joinder in his bill of his independent legal cause of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |