Hynote was not a witness in the case, and there was evidence tending to prove that he could not be located. The defendant introduced in evidence a certified copy of the alleged deed of Isaac Sayles to Hynote, the deed of Hynote to defendant, and testimony relied on to prove a sale of the land by Isaac Sayles to Hynote. The defendant assigns as errors rulings of the court on objections to evidence and in giving and refusing instructions to the jury.

M. B. Saucier, a witness for the plaintiffs, testified to the following effect: I lived at Graham, Tex., for about five months, during which time I was engaged in the abstract business, abstracting titles in that county. It was my business to visit the clerk's office every day and make a note of instruments that had been filed. While I was there in the abstract business, I took a note of a deed from Isaac Sayles to J. L. Hynote. I made a tracing of the signature on that deed, the signature of Isaac Sayles. That is, I laid a carbon on a card and took an instrument and drew an outline of it with a stencil. I simply traced the signature that was written on the deed with a sharpened piece of wood. I made a careful tracing of the signature on the deed. The tracing that I made of that signature of Isaac Sayles on the deed from Sayles to Hynote was a correct fac simile of the signature of the deed.

[1, 2] Following the statement in the bill of exceptions of the above set out testimony of the witness, the bill of exceptions shows that counsel for defendant said: "We object to that as the opinion and conclusion of the witness, this last answer. Let him testify to what he did." The defendant excepted to the action of the court in overruling that objection. It may be presumed, the contrary not appearing, that the answer of the witness which was objected to was in response to a question which indicated that the answer made by the witness was such a one as the propounder of the question desired or expected. The court is not chargeable with error in overruling an objection to a statement by a witness which was responsive to a question which was not objected to. Upon the plaintiffs offering in evidence the card containing the traced signature of Sayles as made by the witness Saucier, the defendant objected thereto. We are of opinion that the court did not err in overruling that objection. The tracing was evidence similar to a photograph of the signature. It not appearing that the orig

inal of the instrument bearing that signature was ever in the possession of the plaintiffs, and such original not being produced in the trial, and the genuineness of the signature being in issue, it was permissible for the plaintiffs to prove the appearance of that signature by secondary evidence, and in that way to furnish a basis for a camparison of the fac simile of the signature with proved or admitted genuine signatures of the person whose name was signed to the instrument in question.

note.

[3] The plaintiffs offered in evidence, for the sole purpose of showing common source of title, a certified copy of the above-mentioned recorded instrument purporting to be a deed from Isaac Sayles to J. L. HyThe defendant objected to that evidence for the reason that the instrument offered appears to be a certified copy of the record. The court overruled that objection. That the evidence was not subject to objection on the ground stated is demonstrated by the following Texas statute:

"It shall not be necessary for the plaintiff to deraign title beyond a common source, and proof of a common source may be made by the plaintiff by certified copies of the deeds showing a chain of title to the defendant emanating from and under such common source; but before any such certified copies shall be read in evidence they shall be filed with the papers of the suit three days before the trial, and the adverse party served with notice of such filing as in other cases; provided, that such certified copies shall not be evidence of title in the defendant, unless offered in evidence by him; and the plaintiff shall not be precluded from making any legal objection to such certified copies, or the originals thereof, when introduced by the defendant." Vernon's Sayles' Ann. Civ. St. Tex. 1914, art. 7749.

Furthermore, the defendant could not have been prejudiced by the admission of evidence of a fact which was alleged in his own answer to the petition in the suit.

[4] The court refused to give the following instruction to the jury requested by the defendant:

"In this case, you are instructed that you will return a verdict herein in favor of the defendants, unless you find and believe from the evidence that the deed, of date January 29, 1920, purporting to be from Isaac Sayles to J. L. Hynote, was not executed by the said Isaac Sayles or with his authority, and in this connection you are charged that the burden of proof is upon the plaintiffs to

show by a preponderance of the evidence that said deed was not executed by said Isaac Sayles, or with his authority."

The oral charge of the court to the jury contained instructions to the effect that the burden was on the defendant to prove that the recorded instrument purporting to be a deed from Isaac Sayles to J. L. Hynote was actually executed by Isaac Sayles. The just-mentioned rulings are assigned as errors. The above set out statute and the following one have a bearing on the questions so raised:

"Every instrument of writing which is permitted or required by law to be recorded in the office of the clerk of the county court, and which has been, or hereafter may be, so recorded, after being proved or acknowledged in the manner provided by the laws of this state in force at the time of its registration, or at the time it was proved or acknowledged, or every instrument which has been, or hereafter may be, actually recorded for a period of ten years in the book used by said clerk for the recording of such instruments, whether proved or acknowledged in such manner or not, shall be admitted as evidence in any suit in this state without the necessity of proving its execution, provided, no claim adverse or inconsistent to the one evidenced by such instrument shall have been asserted during that ten years; provided, that the party to give such instrument in evidence shall file the same among the papers of the suit in which he proposes to use it at least three days before the commencement of the trial of such suit, and give notice of such filing to the opposite party or his attorney of record; and unless such opposite party, or some other person for him, shall, within three days before the trial of the cause, file an affidavit stating that he believes such instrument of writing to be forged. And, whenever any party to a suit shall file among the papers of the cause an affidavit stating that any instrument of writing, recorded as aforesaid, has been lost, or that he cannot procure the original, a certified copy of the record of any such instrument shall be admitted in evidence in like manner as the original could be. And after such instrument shall have been actually recorded as herein provided for a period of ten years, it shall be no objection to the admission of same, or a certified copy thereof, as evidence, that the certificate of the officer, who took such proof or acknowledgment, is not in form or substance such as required by the laws of this state; and said instrument

shall be given the same effect as if it were not so defective." Vernon's Sayles' Ann. Civ. St. Tex. 1914, art. 3700.

The provision of the above-quoted article 7749 is quite explicit to the effect that it shall not be necessary for the plaintiff to deraign title beyond a common source, that proof of a common source may be made in the manner adopted by the plaintiffs in this case, and that certified copies so offered in evidence shall not be evidence of title in the defendant, unless offered in evidence by him. Under the terms of the last-quoted statute, the above-stated filing in behalf of the plaintiffs of the affidavit as to forgery had the effect of keeping the certified copy of the instrument in question from being evidence of its due execution. In behalf of the defendant the decision in the case of Hamer v. Sanford (Tex. Civ. App.) 189 S. W. 343, is relied on as supporting the proposition that an effect of the introduction in evidence by the plaintiffs of a certified copy of the instrument in question for the purpose of showing common source of title was to put on the plaintiffs the burden of proving that that instrument was not executed by Isaac Sayles, or with his authority. The report of that cases does not indicate that the evidence in it raised any question as to the effect, under the abovequoted article 7749, of the introduction in evidence, for the purpose of proving common source of title, of a certified copy of an instrument. So far as appears, no certified copy of any instrument was offered in evidence in that case. The opinion in that case explicitly recognizes the rule that evidence offered by the plaintiff to prove common source cannot be considered as evidence of title in the defendant unless offered by him. The fact that the certified copy of the instrument purporting to be a deed to Hynote was offered by the plaintiffs for the sole purpose of showing common source of title makes the provision of article 7749 applicable, and keeps the instant case from coming within any recognized exception to the rule stated in the opinion in the cited case. No Texas decision to which we have been referred furnishes any support for the proposition in question. We think it would be in the teeth of the plain terms of the statute to hold that the offer in evidence by the plaintiffs of a certified copy of the questioned instrument, for the sole purpose of showing common source of title, had the effect of putting on the plaintiffs the burden of proving that the instrument was not executed by the person whose name

pany was $300, and that to Edwards was $1,200. There were two other small unsecured claims, amounting to less than $200, against Leslie Ward, but none against George Ward, who was only 21 years of age. The father and mother of the bankrupts were divorced in 1916, and both before and after the father's death in 1918 the mother had been making advances of money to the bankrupts. The advances so made to Leslie Ward were approximately equal to the value of the land he inherited from his father. Those made to George Ward were not more than one-half of the fair value of the land he inherited. The appellant and her two sons testified that the deeds in question were executed in satisfaction of such advances. The wheat and Sudan grass crops proved to be failures, and the claims of other creditors accrued after the deeds to the appellant were executed.

Edwards testified that in November, 1920, Leslie Ward stated that, if there was to be any trouble about the past-due indebtedness on the tractor, he and his brother would protect themselves. On the other hand, Leslie Ward testified that the tractor was not as represented, and that he stated to Edwards the intention of protecting himself against defects in the machinery he had bought. Dunlap and his son testified that in November or December, 1921, Leslie Ward stated to them that the deeds had been made by him and his brother to their mother in order to prevent Edwards from subjecting their land to the payment of his claim, growing out of the purchase of the tractor. Leslie Ward contradicted this evidence, and Dunlap's son testified that he repeated this conversation to the appellant, and that the next day Leslie Ward came to him much incensed, and strenuously denied that he had ever made the statement attributed to him.

If it were not for the admissions which it is claimed Leslie Ward made to Edwards and the Dunlaps, the record would be barren of any evidence tending to show that the deeds were executed for the purpose of defrauding any creditor. The testimony of Edwards was clearly insufficient to raise a presumption of fraud. The bankrupts were insisting that the tractor was not as rep

resented, and that they should be given credit for the money spent by them in repairing it. Dunlap and his son were interested as creditors, and it is admitted that Leslie Ward promptly and vigorously challenged the construction which they placed upon the conversation he had with them. It elsewhere appears in the evidence that the bankrupts proceeded, in apparent good faith, to plant the crop of wheat, and that their inability to pay their debts came about because of the failure of crops.

When the conveyances, which are attacked, were made, George Ward was not indebted at all, except for the tractor, and had the right to give to his mother the land he had inherited from his father. Leslie Ward's indebtedness, aside from that to his mother, was insignificant, and so far as then could be foretold his farming operations would be a success. But, if it be assumed that Leslie Ward made the statements attributed to him, it nevertheless appears that he was indebted to his mother in an amount approximately equal to his interest in the lands conveyed, and that she accepted the property in payment of her debt. The evidence does not tend to show that the appellant accepted the title to the land with any reservation or secret interest for the benefit of the bankrupts, or either of them. Her title, therefore, is unaffected by any representation which Leslie Ward might have made to his secured creditors. Coder v. Arts, 213 U. S. 223, text 241, 29 S. Ct. 436, 53 L. Ed. 772, 16 Ann. Cas. 1008; Repauno Chemical Co. v. Victor Hardware Co., 101 F. 948, 42 C. C. A. 106. The evidence, therefore, does not sustain the conclusion that the transfers were fraudulent within the meaning of section 70 of the Bankruptcy Act (Comp. St. § 9654). The utmost disclosed is a preference of one creditor over others. The deeds to the appellant were recorded more than four months prior to bankruptcy, and therefore cannot be set aside on the ground of a preference under section 60b of the Bankruptcy Act (section 9644).

The decree of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

263

DENT INS. CO.

(Circuit Court of Appeals, Fifth Circuit. December 10, 1924. Rehearing Denied January 30, 1925.)

No. 4427.

Insurance 467-Accident policy held not to impose liability for loss of eye more than 90 days after accident.

A policy insured plaintiff, "subject to the conditions, limitations, and provisions herein contained," against accidents which resulted in total or partial disability or death. It contained a schedule of injuries, among which was the loss of an eye, and provided that, "if within 90 days from the date of the accident the insured suffers one of the said injuries," he might at his election receive the amount of the indemnity set opposite the said injury in the schedule. Plaintiff received an injury to his eye which did not cause total or partial disability, but resulted a year later in the loss of the eye. Held, that such injury, not having been suffered within 90 days, was not within the policy.

In Error to the District Court of the United States for the Eastern District of Texas; W. Lee Estes, Judge.

Action at law by Thomas E. Buford against the North American Accident Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.

E. E. Easterling and C. W. Howth, both of Beaumont, Tex. (M. S. Duffie and Howth, Adams, O'Fiel & Hart, all of Beaumont, Tex., on the brief), for plaintiff in error.

C. T. Duff, of Beaumont, Tex. (Edward St. Clair, of Chicago, Ill., and F. J. & C. T. Duff, of Beaumont, Tex., on the brief), for defendant in error.

Before WALKER and BRYAN, Circuit Judges, and CLAYTON, District Judge.

BRYAN, Circuit Judge. This is a suit on an accident policy. The plaintiff, a real estate agent, while a passenger on a railroad train, suffered an accidental injury to his left eye. He promptly consulted a physician, who attempted to prevent the loss of sight, and did not give up the hope of doing that until more than a year after the injury, when the injured eye was removed. The facts are not in dispute. The policy was in force at the time of the accident and until after the eye was removed. Defendant's liability turns upon the question whether the policy provides indemnity for the loss of the eye occuring more than 90 days after the accident.

The policy contains the following caption: "This policy provides indemnity for loss

means, and for loss of sight, use of limb, or time by illness, as herein limited and provided" and provides that the insurance company, "subject to the conditions, limitations, and provisions herein contained, does hereby insure" the plaintiff "in the principal sum of seventy-five hundred dollars (herein called the principal sum) and in the sum of twentyfive dollars a week (herein called the weekly indemnity) against

"(1) Bodily injury sustained during the term of this policy through accidental means (excluding suicide, sane or insane, or any attempt thereat, sane or insane), and resulting directly, independently and exclusively of all other causes, in

"(a) Immediate, continuous, and total disability that prevents the insured from performing any and every kind of duty pertaining to his occupation;

"(b) Immediate (as respects the injury or as respects preceding total disability) and continuous partial disability that prevents the insured from performing fully work essential to the duties of his occupation. "(c) Death;

"(2) Illness, as hereinafter defined," etc.

"Article 6. If the insured suffers total disability, and if, during the period of said total disability, the insured suffers death as the direct result of the bodily injury causing the said total disability; or, if within ninety days from the date of the accident, irrespective of total disability, the insured suffers death, the company will pay the principal sum, and, for such part of the period between the date of the accident and the date of death as the insured has not been paid a weekly indemnity, an additional sum of the weekly indemnity.

"Optional Indemnity.

"Article 7. Or, if the insured suffers total disability and if, during the period of