70S
nDDAL REPORTER,
vol. 62e.
,:1 _lOt 'opin.on that this pllinciple is as, applicable to an action onirfhe as to the action upon the bonds and coupons, which l'eluUed:ln obtaining the judgment. It, was not therefore necessary fOl'the plaintiff to present his claim to the Goard, or await its actionthet'eon, in order to maintain this action. Thie'clerlt.will enter judgment in favor of plaintiff,as prayed for in: his, complaint. SUTRO v. LWCOLN COUNTY. LUNING CO. v. SAME. (Olrcu,it Court, D. Ne:v:ada. June 18, 1&».) Nos. 578 and 582. 'these were two actlons--one by Charles Sutro, the other by the Luning Compliily-agalnst Lincoln county, each on a judgment against the county. Each,casewas submitted t.o'the court on an agreed statement of facts, and a jury '\Vas w.aived. Freeman & Bates, for plaintitrSutro. Langhorne, for plaintitr Luning ,Co. , Trenmor Ootlin and S. Sawyer, for defendant. HAWLEY, District ;rudge. The principles announced in Vincent v. Lincoln Co., 62 Fed. 705. are declsiyeiof the questions raised in these cases. Upon the authoritY of that case, judgment is hereby directed to be entered in favor of the herein, as for in the respective complaiilts.
HENDERSON et aI. v. SMITH. , (Circuit Court. of Appeals, Fifth Circuit. No. 2ll. TESTAMENTARY POWERS-ExEOUTION-DEED 01'
May 8, 1894.)
TRUST. A married woman's will gave llll her property to her husband. "'during his natural life, to be by him managed and disposed of in whatever way mils to him seem just and rillht;" and' directed' that all remaining at his death undisllosed of by him should be divided among their children. Land which had belOnged to their community estate was conveyed by him. after he had married, again, his second wife joining, by a deed of trust to secure' payment of money advanced to him, making no reference to the' will. but particularly describing the land with habendum to the trustee, his $Uccessor.or SUbstitute, forever. and covenant of warranty. Held, that the trust deed was a sufficient execution of the power declared in the will, and passed the entire title. and not alone the husband's estate in the land.
In Error to the Circuit Court of the United States for the Western District of Texas. This was an action of trespass to try. title to land, brought by Francis Sijl.ith against James W. Henderson and others. On trial by the court without a jury, judgment was rendered for plaintiff. Defendants brought error. Sam.. Stre.l?t.man and T. S. Henderson, for plaintiffs in error. H. P. Drought, for defendant in error.
HENDERSON V. SMI'l'H.
709
Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge. McCORMICK, Circuit Judge. This is an action of trespass to try title, the form of real action in Texas. The land had belonged to the community estate of James W. Henderson and his wife, Mary E. Henderson. She died testate in 1880. Her will was duly probated. It provided: "(2) After relieving all our property ot every incumbrance which may be
upon it at my death, I will and bequeath to my beloved husband, J. W. Henderson, all my effects, of any nature and description, both real, personal, or mixed, during his natural life, to be by him managed and disposed of in whatever way may to him seem just and right, having full faith and confidence that he will guard well the interest of our darling children in all his dealings. (3) At the death of my said husband, I desire that all effects then remaining undisposed of by my said husband shall be divided equally among our children, share and share alike,. taking into account any' advances that may have been made them during the life of my said husband."
Mary E. Henderson left surviving her eight children, the fruit of her marriage with James W. Henderson. He married a sec· ond wife. In 1890, he, joined by his second wife, conveyed the land in controversy to a trustee, to secure the payment of a large sum of money advanced Henderson by the firm of which the de· fendant in error was a partner. The deed of trust makes no ref· erence to the will of Mary E. Henderson. It particularly describes the land, it provides for a substitute trustee, and in its habendum clause uses this language: "To have and to hold the above-described premises and appurtenances, rents, profits, and income, improvements and machinery unto the said party of the second part, and his successor or substitute, forever." It contains a covenant that the grantor will warrant and forever defend the title to the same unto the said party of the second part, and his successor, against the lawful claims of all persons. Default was made in the payment of the money, and the substitute trustee, in accordance with the terms of the trust deed, conveyed the land to the defendant in error. He brought this action against James W. Henderson and the descendants of Mary E. Henderson. The pleadings are formal. The contention of the plaintiff below, the defendant in error, is that the absolute fee-simple title to the lands passed by this conveyance through the trustee. The contention of the plaintiffs in error is that Mary E. Henderson vested in hel' husband only a life -estate in her half of theil' community property; that, having in his own right a one-half interest in the land, and undel' the will a life estate in the othel' half, his deed must be construed to pass only these interests of his in the land, as it makes no reference to the power, and can have substantial effect without reference to it. The parties waived a jury, and the trial judge gave judgment for the defendant in error. The following are assigned as errors: "(i) The trial court erred In its first conclusion of law in finding that the will of Mary E. Henderson, deceased, passed the fee-simple title to the property in controversy to her husband, the defendant J. W. Henderson, because same conveyed only a life estate to said James W. Henderson during his
('110
)'EDERA:.L REPORTER,
vol. 62.
no wl.1J;,, (2} The trial court erred In its second conclusion of law in holding that the deed' of trust ex· ecuted by said defendant J. W. Henderson, to H. P. Drought, trustee, passed all of the title to the property in said James W. Henderson, including both hiscomin1DJity'interest and his :·deceasedwite!s community interest, as em· brac\:\d.:: lU,sp\ll said deed ..:trust could and did only convey which said ,J/l.qles W. ;IJenderson had in said land. Which .the legal estateo*lY' c6risi$ted of said 'community property, and his life estate wife's Halt of said' community property, devised to him in her wUl, and did not convey absolutely in fee simple his said deceased sllld commUJ!.ltypI;9perty."
/
the :plll:intiftsbl error, they donot eonlend :iha¥. ¥aq, E. wnlqid not give her husband power to alienate all of her half of their community property. TheircQ"t'enOol1 is that, owning an interest in the property sufficient to give to his deed, and making ili his deed no refer· Will, the deed Qe,construed to pass only his own ence estate in the land. It is manifest that, unless both of the assignments . 9f error above are weJI taken, the judgment of the circuiteourt must be aftirw,ed. If the will passed the fee-simple the, property in controversy to. J. W. Henderson, it is iIR· ;material.to, inquire further. U.,on the other hand, his deed must be hel(l lilufficient to shoW a disposition under the conceded power, it is wholly immaterial :what estate the surviving husband took, under' tb,e:will" the half of their community property. this <}uestion of ,the execution of a given power, it is to that: be "The power may. be Without reciting it, provided the act shows that the dQnee had inviewth.esubjeqt. of ithe power. · · · The general rule ()fconstruction, both .,8.$ to <leeds and wills, is, if there. be an interest and a 'p«>wer existing in the sap)e person, over the same subject· matter; and an act be done without a particular reference to the power, it will be applied to the Illterest, .and not to the power. · · · In construing the,instrument in. c8$es .' the party has a power, and also an interest, ,tile intention i$ the. great object of inquiry, And the instrument is construed to be either an llPpOlntment or' a release; that is, either an appointment of 11 use in exeeutionofa power, or a conveyance of the interest, as ",ill best efrect the predOlllinll.nt intention of the party. It may. indeed, operate ,as an appointment" and. also as a conveyance, if it be so intended, though the usual practice is to keep these two purposes clearly distinct." 4 Kent, Comm. 333-335.,. '. " ' .
In lJough v. Hill, 47. Tex. 148, James S. Steele had executed two powers of attorney to cOll,vey land. The first, dated October 4, 1838, n.amed Alexander f1;1 Livermore as .the donee, and the second, dated,February 1839, .named Amos H. Livermore as the donee of the power. In construing the deed offered in evidence, the say: supreme court of "Notwithstanding the fact· the deed to Balleypurports to bave been .made b;r.virtue of the first power of attC>l'IleY, and is silent as to any other power, we think that if A.n. Livermore,'who, as attorney in fact for James S. Steele, executed that deed; was in'reality, by virtUe of the second power of attorney, empowered to do so, the deed WOuld be valid."
In Weir. Smith, 62 Tex. 1, the power relied on was declared of the power, as claimed by the par,bywUI, and ties, was bythewilb)f the donee. The latter will did not refer
v;
HENDERSON V. SMITH.
711
to the first will, but the property named in certain clauses of the will of the donee was shown to have belonged to the first testator, and there was nothing to raise a presumption that the testatrix in the second will had or claimed any other interest in the property that as donee of the power. clausns were IlplHJd as an execution of the powel'. It was held that, in certain other clauses of her will, she disposed of lands and personal property, to which she asserted title in herself, in a manner inconsistent· with any intention, through these last clauses, to execute th(.> power given her by the will of her husband. The court say: "If she had named, in these clauses, property embraced in the will of her husband. then the question would arise whether her disposing of the propel:ty as her own would rebut the presumption of her intention ,to ex: cute the power given by her husband. No such case. however, is presented."
In the case just cited, the court quotes from 4 'Kent, Comm. 335, and say the rule as there stated is well sutained, citing authorities. While Mary E. Henderson survived, her husband had exclusive control of their community property, and could dispose of it in whatever way to him might seerp. just and right. She· had understood this, and had full confidence in him. Her children were his children. There were a goodly number of them. It was evidently in the interest of the family, as such, and of these children, that she undertook by her will to provide for the continuation of this control and power of disposition in the event of her death. It appears that at the date of the execution of her will their property was incumbered. It may have been incumbered at the time of her death. However this may be, she declared: "I will and bequeath to my beloved husband. J. ,,y. Henderson, all my effects, of any nature and description, both real. personal. or mixed, during his natural life, to be by him managed and disposed of in whatever way may to him seem just and right, having full faith and confidence that he will guard well the interest of our darling children in all his dealings."
There is nothing in this record to show that he has not continued to deserve that confidence. He procured advances of money amounting to a la;rge sum. To secure the payment of this money, he executed the deed of trust through which such title as he conveyed· passed to the defendant in error. The land is carefully described. It, and all its appurtenances, rents, profits, income, improvements, and machinery are conveyed to his grantee, with covenant to warrant and forever defend the title to the same unto the grantee against the lawful claims of all persons. To meet certain provisions in the Texas law relating to estates of deceased persons, in the event of his death, his wife join's in executing this deed. The transaction is in no manner different from what it would have heen had his first wife been still living. She would have joined in the trust deed, and only for the samepurpose,to meet the contingency of his death occurring before the trust was fully executed. Can it be doubted that it was the intention this trust deed, to pass thel'eby of James W. Henderson, in all the estate in the land described which he, in any right, or under any power, was authorized to convey? .Could such inten-
FEDERAL REPORTER,
tionbe more shoW'n tpan it therein appears? We conclude that c();r;Lveyance to. tb.e ,defendant in error, through the trustee, must beheld to be ane:x;ecution of the power declared in the of Mary E. Henderson, and the judgment of the circuit court is therefore affirmed. == .== CASK;EY et al. v. ·CHENOWETH. (Clrcult Court of, Appeals, Fifth Circuit. No.l50.
May 1, 1894.)
1.
ApPEARANCIIl-WAIVER OF OBJECTION
Defendants in 'an acti()n in a state court, in which an attachment was levied on their property, being nonresidents of the state, removed the cause to the United States .circuit cOUl;t, and again to the circuit court at another, place. 'l'hereafter they filed an answer, raising aU the merits, but asserting that they reserved their rights as nonresidents, and also tlledanaotion to quash the attachment, asserting that they appeared for the purpose.of the motion only, whereupon the attachment was quashed. Held. that they could not afterwards question the sufficiency of the on theij! of the citation in the. suit. FECTS IN VENDOR'S TITLE.
'ro
SERVICE OF PROCESS.
2. VENDOR AND PURCHASER-REPUDIATION OF CONTRACT BY PURCHASER-DE-
In an action for breach of a contract by which plaintiff agreed, in payment for merchandise bought of defendants, to pay $1,000 and convey certain lands,. it appeared that he could not give title to the lands, but there was evidence that defendants had repudiated the contract before actual default on plaintiff's part, and also evidence to the contrary. Held, that it was error. without submitting to the jury the question as to default on Part:. to dir,ect a verdict fOr plaintiff for the $1,000 which he had paid.
Oil September 24, 1891, the plaintifffi in error, John Oasltey andW. J. Wilkes, composing the firm of Casl{ey & Wilkes, then engaged in mercantile bUsiness in Ft. i Worth, Tex., contracted in writing with defendant in error, J. W. Chenoweth, t() sell him their stock of merchandise at invoice prideS, with 5 per cent. and Chenoweth agreed to pay for !'lame as follows: $1,000 cash when stock was tendered for invoice; "also, to convey, by good and sufficient warranty deed, sections 13, 15, 23, 53, and the north 229 .acres of section 55, .all block 16, Texas & Pacific reservation lands in Taylor county, Texas." The contract also provided: "Said Chenoweth also represents that he has good title to said land, and that the same is clear and free from any lien or incumbrance whatever, except a lien of $3,746.20, and'that at least 00 per cent. of said land is substantially free from breaks and ,gravel; and said Chep,oweth agrees to furnish complete abstracts of title to said land, bringing title down to time of conveyance herein agreed to be made." It was provided in contract that Caskey & Wilkes should take the land hereinbefore described, as a payment upon the stock of goods, at the sum of $8,094, and subject to the lien of $3,746.20. It was further provided that the invoice sbould. be commenced September 28, 1891. Detailed pro-
In Error to Circuit Oourt of the United States for the Northern District of Texas,at Dallas. This was an action by W. Chenoweth against John Caskey and W. J. Wilkes fordamages for breach of contract, brought in a court of the state of Texas, arid removed therefrom by defendants. At the trial in the circuit court, the judge directed the jury to find for plaintiff. Judgment for plaintiff was entered on the verdict. Defendants brought error.