2 F.(2d) 418 sonal representatives,' and the grantor died, the same court held that the extension money should be paid to his heirs and not to the administrator, basing the decision on the ground (notwithstanding the fact that the deed expressly provided for payment to the 'grantor and his personal representatives') that the provision for extension of time was an option, an offer to confer the right which matured only at the time the conditions were complied with, and the property being then owned by the heirs and the price to be paid for the interest then arising out of their ownership, it should inure to them. "Upon reason, principle, and authority, this court would have no difficulty (aside from the case of Richardson v. Cooler) in reaching the conclusion that, under the facts in this case, the renewal money should be paid to the owner of the land at the time of payment, there being nothing in the original timber contract to evidence a contrary intention, and there being no express reservation of the interest money by the Bellingers in the partition suit brought by them or in the sheriff's deed made pursuant to the decree of the court in that proceeding. "Mr. Gruber, however, contends that Richardson v. Cooler establishes the contrary principle. His contention is that the Supreme Court of South Carolina in that case has established the broad doctrine that where the original timber contract provides for the payment to the grantor by name, and not to him or his assigns, the renewal money should be paid to the grantor, in the absence of any assignment by him of his right to the same, and that a deed to the premises is not a sufficient assignment of the right to the renewal money. But this broad doctrine contended for is, in the opinion of the court, so manifestly against reason and principle, and will, if applied to the extent claimed, lead to injustice in so many cases, that I am not disposed to extend the doctrine further than the facts in the Cooler Case demand. "In that case, the Coolers, the original grantors, claimed the renewal money. In the case at bar, the Bellingers have never claimed it. The facts in the Cooler Case are substantially as follows: "Mr. and Mrs. Cooler, who were the father and mother respectively of four sons, conveyed certain timber to the American Lumber & Manufacturing Company, which was Richardson's predecessor in title. The conveyance gave to the company and its assigns 10 years from the date of the deed to remove the timber and 5 years' additional time 'on paying to me, the said Sarah A. Cooler, $60 per annum for each additional year after the first 10 years.' Mr. Cooler's deed contained a like provision for additional time on payment to him of $30 for each additional year after the first 10 years. At the expiration of the 10-year period Richardson paid the renewal money to Mr. and Mrs. Cooler. Before doing so, however, Richardson attempted to ascertain the proper persons to whom the money should be paid, and was informed by Mr. and Mrs. Cooler that they were the proper persons to receive the money. When their attention was called to certain deeds which Mr. and Mrs. Cooler had made to their four sons, Mr. Richardson was informed by them that the deeds had never been delivered, and that these sons would execute an instrument in writing authorizing or ratifying the parents' receiving the renewal money. The money was paid, but the sons refused to execute the instrument, and brought an action for damages against Richardson. They also brought an action to prevent Richardson from cutting the timber. Moreover, the deeds to the sons were so drafted that it was not possible to tell what portion of Mr. Cooler's lands, as distinguished from Mrs. Cooler's lands, had been conveyed to the respective children, nor, if the extension money was payable to the sons, what fractional portion each should receive. Running throughout the case was strong evidence of an attempt to defraud, and a well-founded suspicion could arise that there was collusion between the parents and the sons, in order to work a forfeiture. "The court held, based on these facts, that the right of Richardson to cut the timber was not defeated nor lost by his failure to pay the renewal money to the sons, who were the owners of the land, instead of to the parents, who were the grantors of the timber. The decision was apparently put upon the ground that it appeared that the parents had not intended to convey to the sons their contractual right to receive the extension money, and that, the original timber contract having specifically named the original grantors as the persons entitled to receive the renewal money, and there being no mention in the original timber contract of their heirs or assigns, they alone would be the persons to whom the renewal money could be paid. "Under the circumstances shown by the record in the Cooler Case it clearly appears that it would have been a gross fraud upon Richardson, if his title had been defeated in the manner sought by the sons and their parents. The case, of course, must be construed in the light of the facts there present ed. The law is what the court actually decided. In the Cooler Case, the deeds by which the Coolers conveyed the land to their children are not set forth, and it cannot be determined whether they contained any provision similar to the provision in the sheriff's Ideed in the case at bar. "In the present case, the sheriff's deed not only contains a provision passing all the 'rights,' etc., 'to the said premises belonging or in any wise incident or appertaining,' but also 'all the estate, title, claim, and interest whatever, of the parties to the cause aforesaid, and of each of them in and to the same.' Certainly this language would appear to be broad enough to cover any claim that the Bellingers might have had to the renewal money. "In the Cooler Case, the conveyances by the Coolers to their children were by deeds inter partes, and their terms are not stated; in the present case, the sale of the premises was in a partition suit, and the presumption, in the absence of anything to the contrary in the partition proceeding, is that this judicial sale carried all the rights and interest of the Bellingers in the premises of every nature whatsoever. There are other features in the Cooler Case which do not appear in this case. In the Cooler Case, the Coolers not only claimed the renewal money, but actually represented to the purchaser of the timber rights that it was not their intention by their deeds to their children to convey their rights to the renewal money, and afterwards (apparently in collusion with their children) took the position that they had no right to the renewal money. "No court could have looked with any favor upon this inconsistent attitude of the Coolers, father and mother, and there was a strong suspicion that, in adopting this attitude, there was collusion between them and their children. Moreover, in the Cooler Case, in the deeds from the Coolers to their children, the land was so described that it was impossible to tell how much cleared land had been conveyed to each child, or whether some of the tracts conveyed were composed in part of the father's tract and in part of the mother's, and, if so, how many or which of them were so composed, and what the proportions were. "If the Cooler Case establishes the broad doctrine claimed for it, it is difficult to reconcile it with the previous case of Fairfield Timber Co. v. Simmons, or the later case of United Timber Co. v. Chapman. It is true that in the Cooler Case the court held that in Fairfield Timber Co. v. Simmons the de cision was based upon the provisions in the deed in that case to the effect that the benefits, etc., should inure to the heirs and assigns, etc. But it was not based upon that provision alone. It was based upon two other grounds, and the court merely stated, as an additional reason for sustaining its conclusion, that in the absence of a contrary agreement the renewal money should go to the then owner of the land; that to adopt the contrary view would practically nullify the provision as to the heirs and assigns. It is evident from a reading of the case of Fairfield Timber Company v. Simmons that, if the provision referred to had not been in the deed at all, nevertheless the decision of the court upon the grounds previously stated would have been the same. "The point is made that, in the case of Fairfield Timber Co. v. Simmons and the later case of United Timber Company v. Chapman, the person to whom the renewal money was to be paid was not specifically stated, while in the Cooler Case and in the case at bar the person is specifically named, to wit, the grantor himself. I cannot see how this distinction is a sound one. It is clear that, although the grantor in the case of Fairfield Timber Co. v. Simmons and of United Timber Co. v. Chapman was not specifically named as entitled to the renewal money, nevertheless, if the grantor in each of those cases had never conveyed the land, there could have been no doubt that he was entitled to the renewal money. "If some other person than the grantor had been named specifically as the person to whom the renewal money should be paid, there might be some force in the argument; but the naming of the grantor specifically as the person entitled thereto did not in effect add anything to his rights, for certainly, before any conveyance by him, he would be entitled to the renewal money, whether the contract provided for payment to him by name or not. The reasoning in Fairfield Timber Co. v. Simmons and United Timber Co. v. Chapman is absolutely irreconcilable with the broad view, contended for, that the owner of the reversion is not entitled to the renewal money, where the original contract provides for payment to the grantor specifically by name, and not to the grantor and his heirs and assigns. "Entertaining these views, I hold that the doctrine contended for should not be extended beyond the facts of the Cooler Case, and that the facts of the Cooler Case are different from the facts of the present case, and therefore the Cooler Case is not controlling 2 F.(2d) 418 in this case. But, even if I should be mistaken in this view, I think Mr. Gruber is now estopped from claiming that he is not the proper party to receive the renewal money. Both parties acted on the theory that Mr. Gruber was the proper party to receive the renewal money. The Bellingers at no time have made any claim to it. There was no suggestion by Mr. Gruber at any time or by the Lumber Company that the Bellingers were entitled to the renewal money. It is true that Mr. Gruber testifies that he had in mind that he was not entitled to it, but he nowhere made any such statement to the Lumber Company. "The whole course and conduct of the transaction between the two parties showed that they were resting their respective claims and rights upon the Bellinger deed. Mr. Gruber accepted the $30 and receipted for it, and the receipt itself shows on its face that it was to be a renewal of the rights under the Bellinger deed. It is true that Mr. Gruber testified that another receipt had been previously offered to him, which varied the Bellinger deed, and for that reason he declined to sign it; but, so far from this showing that Mr. Gruber, in accepting the renewal money, was not accepting it under the terms of the Bellinger deed, it rather shows to the contrary. It would appear that he objected to signing the original receipt because it varied the terms of the Bellinger deed, and, when the company did present him with a receipt which did not vary the terms of the Bellinger deed, he signed it and merely contented himself with inserting the words, 'the company desiring renewal for the one year as above stipulated.' "The real controversy at that time between Mr. Gruber and the Lumber Company revolves around the effect of that addition to the receipt. Mr. Gruber is a lawyer, and no doubt was familiar with the case of Minshew v. Lumber Corporation, 98 S. C. 8, 81 S. E. 1027. In that case, the court laid down the rule that, where a party desired a timber extension, he must tender and pay the amount agreed upon in advance and indicate the additional number of years he would claim. That was understood to be the law at the time the company tendered to him and he accepted the $30 on April 12, 1917. He testifies that he asked Mr. Broadhurst whether they desired more than one year and that Mr. Broadhurst stated that the company desired one year, and he thereupon made the interlineation referred to. Thereupon, later, the Lumber Company, no doubt acting upon the advice of counsel, practically denied the authority of Mr. Broadhurst to designate one year as the additional time the company desired. "If the law had remained as stated in the Minshew Case, the real controversy between Mr. Gruber and the Lumber Company would have revolved around the right of Mr. Broadhurst to bind the company to his designation of one year, and upon that issue the authority of Mr. Broadhurst would be material, and it would be material to decide the conflicting testimony of Mr. Broadhurst and Mr. Gruber upon that point. But the Supreme Court, in a case decided shortly after that controversy arose, to wit, on April 30, 1917, in the case of Lumber Co. v. Johnson, 107 S. C. 147, 92 S. E. 271, held that it was not necessary to designate the number of years of extension desired, and in the later case of Bethea v. Lumber Co., 111 S. C. 97, 96 S. E. 717, approved the decision of Lumber Co. v. Johnson, and also held that the simple act of payment extended the right to cut. "Under these decisions, all controversy as to the designation being for one year and as nated, and all questions relative to that conto any receipt at all being required is elimitroversy, therefore, fade from the case. that controversy, it is clear that both parties looked to the Bellinger deed to ascertain their respective rights. In "The question therefore arises upon the estoppel. Mr. Gruber has cited a number of South Carolina cases and other authorities which have been carefully considered. Without taking them up specifically, I do not think that there is anything in them to prevent the application of the doctrine of esMr. Gruber in toppel in the present case. his brief has the following quotation from Corpus Juris: "Essential Elements-In General.-In or der to constitute this kind of estoppel there must exist a false representation or concealment of material fact; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted upon; and the party to whom it was made must have relied on or acted upon it to his prejudice. To constitute an "estoppel in pais" there must con, cur an admission, statement, or act inconsistent with the claim afterward asserted, action by the other party thereon and injury to such other party. There can be no estoppel if either of these elements is want ing. They are each of equal importance.' 21 Corpus Juris, 1119, 1120. "If we test the case by this statement of the law, I do not see that there can be any doubt about the estoppel. Mr. Gruber certainly accepted the money and certainly accepted it as the renewal money under the Bellinger deed. That act of receiving the money is certainly inconsistent with the claim that he now asserts that he was not the proper party but that it should be paid to the Bellingers. The mere fact that he did not actually say in words to the Lumber Company that he was the proper party can make no difference. The Lumber Company certainly acted upon the theory that they had paid the money to the proper party. If Mr. Bellinger had refused to accept the money on the ground that he was not the proper party to receive it, but the Bellingers, the company would undoubtedly have taken steps before their time expired to have made a tender to the Bellingers, and in such case Mr. Gruber would have been estopped from claiming that the Bellingers were not the proper parties. But nothing of that sort occurred. He accepted the money as if he stood in the shoes of the Bellingers and has never offered to return it. "Mr. Gruber also contends, however, that the matter depends upon the construction of the Bellinger deed, and that the Lumber Company therefore could have construed the deed as well as he; but that is beside the mark. The point is that both of them, by their conduct and course of negotiation, construed the Bellinger deed as requiring the renewal money to be paid to Mr. Gruber and not to the Bellingers. It is a familiar rule that, where both parties to a contract act upon a certain construction of it, that construction is, in general, controlling, and I see no reason why the rule should not be applied to the case of subsequent grantees and others who are interested in the same contract, so that they should be bound by the construction that they have both adopted. Even if the original Bellinger deed, under the case of Richardson v. Cooler, requires that the renewal money should be paid to the Bellingers, I hold that the conduct of the parties in this case has been such that Mr. Gruber is estopped from making such claim, and that the tenders to him under all the circumstances of this case are good and binding upon him. "Mr. Gruber's second contention is that the renewal money of $30 paid to him was not paid to him as renewal money under the terms of the Bellinger deed, but that the payment of that money and the giving by him of that receipt constituted an entirely new and different agreement, whereby he regranted to the Lumber Company the right to the timber and to another period of one year to take the same from the land. What I have said before in connection with the question of estoppel would sufficiently dispose of this question likewise. "I cannot find anything in the whole course and conduct of the parties and their negotiations which would lend color to the idea that the parties thought they were entering into an absolutely new and independent contract, by which Mr. Gruber sold them the timber in question with the right of entry for one year for the purpose of removing the same. In addition to what has already been stated, it is to be noted that as far as the testimony shows, no part of the timber has ever been removed. The original price of the timber was $500, and it is not to be supposed that it had decreased in value. "It would seem to be extremely unlikely, therefore, that Mr. Gruber would sell this timber by a new and independent contract for the sum of $30, even though the time of removal should be restricted to one year. This in itself is a strong circumstance to indicate that the parties really had in mind a carrying out of the Bellinger deed and not entering into a new and independent contract. Moreover, as has been pointed out, Mr. Gruber himself testified that he was unwilling to extend the terms of the Bellinger deed. He was apparently unwilling to enter into a new and independent contract. He was evidently standing upon the Bellinger deed and upon the Minshew Case. I cannot, under the testimony and the stipulated facts, find that the payment of the renewal money by the Lumber Company and the giving of the receipt by Mr. Gruber constituted any new and independent contract. "It is therefore ordered, adjudged, and decreed that the title to the timber specified in the Bellinger deed on the tract of land described in the complaint as No. 4 and known as Rotherwood, is in the defendant the Savannah River Lumber Company, in accordance with the terms and conditions set forth in the Bellinger deed by reason of the payment to Mr. Gruber of the sum of $30 on April 12, 1917, and the tender to him of like amounts in subsequent years. "It is further ordered, adjudged, and decreed that the complaint, as to the defendant the Savannah River Lumber Company, be and the same is hereby dismissed." W. B. Gruber and M. P. Howell, both of Walterboro, S. C. (Howell & Fishburne and 2 F.(2d) 427 J. C. Lemacks, all of Walterboro, S. C., on the brief), for appellants. A. B. Lovett, of Savannah, Ga., and G. L. B. Rivers, of Charleston, S. C. (J. M. Moorer, of Walterboro, S. C., Hitch, Denmark & Lovett, of Savannah, Ga., Padgett & Moorer, of Walterboro, S. C., and Hagood, Rivers & Young, of Charleston, S. C., on the brief), for appellee. Before WOODS, WADDILL, and ROSE, Circuit Judges. PER CURIAM. We are not prepared to assent to the construction placed by the District Judge on the decision of the Supreme Court of South Carolina in Richardson v. Cooler, 115 S. C. 102, 104 S. E. 305. On that point it is not necessary to express an opinion. We adopt the reasoning of the District Judge on which he reaches the conclusion that Mr. Gruber is estopped, and on that ground affirm the judgment. Affirmed. LOCHNANE et al. v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. November 10, 1924.) No. 4313. 1. Intoxicating liquors 248-Affidavit charging hotel proprietor with possession, transportation, and sale of liquor, without statement of evidentiary facts, held insufficient. Federal prohibition agent's affidavit, that named proprietors of described hotel had been and were "possessing, transporting, and selling intoxicating liquor for beverage purposes" on the hotel premises, without a statement of the evidentiary facts, held insufficient for issuance 4. 5, and Espionage Act, tit. 1. § 5 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212e).4 2. Searches and seizures 3-Judicial officer not authorized to issue search warrant, in absence of affidavit or deposition showing the facts. of search warrant, under Const. U. S. Amends. Under Espionage Act, § 5 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10212e), a judicial officer, before issuance of search warrant, must have before him, by affidavit or deposition, the facts tending to establish the grounds of the application, or probable cause for believing that the facts exist. 3. Criminal law 394-Evidence obtained by means of illegal search warrant held inadmissible. other testimony of prohibition agent that he went into hotel room, found two glasses of beer and empty beer bottle on table therein, and saw two men in the room, in absence of evior had sold or served the beer. dence that defendants were present in the room, In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge. Elsie Lochnane and Mildred White were convicted of the unlawful possession of intoxicating liquor, and they bring error. Reversed. Edward H. Chavelle, of Seattle, Wash., for plaintiffs in error. Thos. P. Revelle, U. S. Atty., and J. W. Hoar, Asst. U. S. Atty., both of Seattle, Wash. Before GILBERT, ROSS, and HUNT, Circuit Judges. HUNT, Circuit Judge. Plaintiffs in error, Lochnane and White, were convicted of unlawful possession of intoxicating liquor. Before the trial of the case the court overruled defendants' motion to suppress certain evidence, on the ground that the affidavit upon which the search warrant was based failed to state any facts upon which the commissioner could have based a finding of probable cause, and that the search and seizure were void and illegal, as made in violation of the Fourth and Fifth Amendments to the Constitution. The affidavit upon which the search warrant issued was made by G. B. O'Hara, who deposed that he was a federal prohibition agent; that a crime was being committed in Seattle, Wash., in that one Myrtle Olson, Mildred White, and Ray Johnson, proprietors, had been and then were "possessing, transporting, and selling intoxicating liquor, all for beverage purposes, on the premises described as Ottawa Hotel, 818 First avenue, Seattle, Wash., and on the premises used, operated, and occupied in connection therewith, all of said premises being occupied or under the control of said Myrtle Olson, Mildred White, and Ray Johnson, all in violation of the statute in such cases made and provided." Based upon that affi Evidence obtained by means of illegal search davit a search warrant, following the lanwarrant held inadmissible. guage of the affidavit as to "possessing, transporting, and selling intoxicating liqor," upon the premises described in the affidavit, was issued, and upon service of the warrant upon one of the defendants and search of a room found to be locked, the key to which was produced by Mildred White, |