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3 F.(20) 258 Hynote was not a witness in the case, and inal of the instrument bearing that signathere was evidence tending to prove that he ture was ever in the possession of the plaincould not be located. The defendant in- tiffs, and such original not being produced troduced in evidence a certified copy of the in the trial, and the genuineness of the alleged deed of Isaac Sayles to Hynote, signature being in issue, it was permissible the deed of Hynote to defendant, and tes- for the plaintiffs to prove the appearance timony relied on to prove a sale of the land of that signature by secondary evidence, by Isaac Sayles to Hynote. The defendant and in that way to furnish a basis for a assigns as errors rulings of the court on ob- camparison of the fac simile of the signajections to evidence and in giving and re- ture with proved or admitted genuine signafusing instructions to the jury.
tures of the person whose name was signed M. B. Saucier, a witness for the plain- to the instrument in question. tiffs, testified to the following effect: I  The plaintiffs offered in evidence, for lived at Graham, Tex., for about five the sole purpose of showing common source months, during which time I was engaged in of title, a certified copy of the above-menthe abstract business, abstracting titles in tioned recorded instrument purporting to that county. It was my business to visit be a deed from Isaac Sayles to J. L. Hythe clerk's office every day and make a note note. The defendant objected to that eviof instruments that had been filed. While I dence for the reason that the instrument was there in the abstract business, I took offered appears to be a certified copy of the à note of a deed from Isaac Sayles to J. L. record. The court overruled that objection. Hynote. I made a tracing of the signature That the evidence was not subject to obon that deed, the signature of Isaac Sayles. jection on the ground stated is demonstratThat is, I laid a carbon on a card and took ed by the following Texas statute: an instrument and drew an outline of it "It shall not be necessary for the plainwith a stencil. I simply traced the signa- tiff to deraign title beyond a common source, ture that was written on the deed with a and proof of a common source may be made sharpened piece of wood. I made a careful by the plaintiff by certified copies of the tracing of the signature on the deed. The deeds showing a chain of title to the defendtracing that I made of that signature of ant emanating from and under such comIsaac Sayles on the deed from Sayles to Hy- mon source; but before any such certified note was a correct fac simile of the signa- copies shall be read in evidence they shall ture of the deed.
be filed with the papers of the suit three [1,2] Following the statement in the bill days before the trial, and the adverse party of exceptions of the above set out testimony served with notice of such filing as in other of the witness, the bill of exceptions shows cases; provided, that such certified copies that counsel for defendant said: “We ob- shall not be evidence of title in the defendject to that as the opinion and conclusion ant, unless offered in evidence by him; and of the witness, this last answer. Let him the plaintiff shall not be precluded from testify to what he did.” The defendant ex- making any legal objection to such certified cepted to the action of the court in over- copies, or the originals thereof, when inruling that objection. It may be presum- troduced by the defendant.” Vernon's ed, the contrary not appearing, that the an- Sayles' Ann. Civ. St. Tex. 1914, art. 7749. swer of the witness which was objected to Furthermore, the defendant could not was in response to a question which indi- have been prejudiced by the admission of cated that the answer made by the witness evidence of a fact which was alleged in his was such a one as the propounder of the own answer to the petition in the suit. question desired or expected. The court is  The court refused to give the follownot chargeable with error in overruling an ing instruction to the jury requested by the objection to a statement by a witness which defendant: was responsive to a question which was not “In this case, you are instructed that you objected to. Upon the plaintiffs offering will return a verdict herein in favor of the in evidence the card containing the traced defendants, unless you find and believe from signature of Sayles as made by the witness the evidence that the deed, of date January Saucier, the defendant objected thereto. We 29, 1920, purporting to be from Isaac Sayles are of opinion that the court did not errto J. L. Hynote, was not executed by the in overruling that objection. The tracing said Isaac Sayles or with his authority, and was evidence similar to a photograph of the in this connection you are charged that the signature. It not appearing that the orig- burden of proof is upon the plaintiffs to
show by a preponderance of the evidence shall be given the same effect as if it were that said deed was not executed by said not so defective." Vernon's Sayles' Ann. Isaac Sayles, or with his authority.”. Civ. St. Tex. 1914, art. 3700.
The oral charge of the court to the jury The provision of the above-quoted articontained instructions to the effect that the cle 7749 is quite explicit to the effect that burden was on the defendant to prove that it shall not be necessary for the plaintiff the recorded instrument purporting to be a to deraign title beyond a common source, deed from Isaac Sayles to J. L. Hynote was that proof of a common source may be actually executed by Isaac Sayles. The made in the manner adopted by the plainjust-mentioned rulings are assigned as er- tiffs in this case, and that certified copies rors. The above set out statute and the so offered in evidence shall not be evidence following one have a bearing on the ques- of title in the defendant, unless offered in tions so raised:
evidence by him. Under the terms of the "Every instrument of writing which is last-quoted statute, the above-stated filing in permitted or required by law to be recorded behalf of the plaintiffs of the affidavit as to in the office of the clerk of the county forgery had the effect of keeping the certicourt, and which has been, or hereafter may fied copy of the instrument in question from be, so recorded, after being proved or ac- being evidence of its due execution. In beknowledged in the manner provided by the half of the defendant the decision in the laws of this state in force at the time of its case of Hamer v. Sanford (Tex. Civ. App.) registration, or at the time it was proved 189 S. W. 343, is relied on as supporting or acknowledged, or every instrument which the proposition that an effect of the introhas been, or hereafter may be, actually re- duction in evidence by the plaintiffs of a corded for a period of ten years in the book certified copy of the instrument in question used by said clerk for the recording of such for the purpose of showing common source instruments, whether proved or acknowl- of title was to put on the plaintiffs the buredged in such manner or not, shall be ad- den of proving that that instrument was not mitted as evidence in any suit in this state executed by Isaac Sayles, or with his auwithout the necessity of proving its execu- thority. The report of that cases does not tion, provided, no claim adverse or incon- indicate that the evidence in it raised any sistent to the one evidenced by such instru- question as to the effect, under the abovement shall have been asserted during that quoted article 7749, of the introduction in ten years; provided, that the party to give evidence, for the purpose of proving comsuch instrument in evidence shall file the mon source of title, of a certified copy of an same among the papers of the suit in which instrument. So far as appears, no certified he proposes to use it at least three days be- copy of any instrument was offered in evifore the commencement of the trial of such dence in that case. The opinion in that case suit, and give notice of such filing to the explicitly recognizes the rule that evidence opposite party or his attorney of record; offered by the plaintiff to prove common and unless such opposite party, or some source cannot be considered as evidence of other person for him, shall, within three title in the defendant unless offered by him. days before the trial of the cause, file an The fact that the certified copy of the inaffidavit stating that he believes such instru- strument purporting to be a deed to Hy. ment of writing to be forged. And, when- note was offered by the plaintiffs for the ever any party to a suit shall file among sole purpose of showing common source of the papers of the cause an affidavit stating title makes the provision of article 7749 apthat any instrument of writing, recorded as plicable, and keeps the instant case from aforesaid, has been lost, or that he cannot coming within any recognized exception to procure the original, a certified copy of the the rule stated in the opinion in the cited record of any such instrument shall be ad
No Texas decision to which we have mitted in evidence in like manner as the been referred furnishes any support for the original could be. And after such instru- proposition in question. We think it would ment shall have been actually recorded as be in the teeth of the plain terms of the herein provided for a period of ten years, it statute to hold that the offer in evidence shall be no objection to the admission of by the plaintiffs of a certified copy of the same, or a certified copy thereof, as evi- questioned instrument, for the sole purdence, that the certificate of the officer, who pose of showing common source of title, took such proof or acknowledgment, is not had the effect of putting on the plaintiffs in form or substance such as required by the burden of proving that the instrument the laws of this state; and said instrument was not executed by the person whose name
3 F.(20) 261 was signed to it. In the situation disclosed complainant, and defendant appeals. Rethe burden was on the defendant to prove versed and remanded. the due execution of an instrument which was a link in the chain of title under which Barrett, of Amarillo, Tex., on the brief),
F. P. Works, of Amarillo, Tex. (L. C. he claimed from the common source,
for appellant. plaintiffs having adduced prima facie evi
W. E. Gee, of Amarillo, Tex. (W. H. dence of title in themselves from such com- Russell, of Hereford, Tex., and Gee & Unmon source. The rulings under considera-. derwood and Cleo G. Clayton, all of Amartion were not erroneous.
illo, Tex., on the brief), for appellee. The defendant complains of the failure and refusal of the court to submit to the jury the
Before WALKER and BRYAN, Circuit question whether the plaintiffs were or were Judges, and DAWKINS, District Judge. not estopped to deny or controvert the as
BRYAN, Circuit Judge. In 1918, two serted claim of the defendant to the land sued for. No evidence adduced tended to brothers, Leslie and George Ward, inherited
from their father an undivided one-sixth prove that the plaintiffs had done or omitted interest each in certain real estate, which to do anything having the effect of so estopping them. There was nothing in the in December, 1920, by separate deeds they evidence to'indicate that the defendant, in conveyed to their mother, Ama A: Ward.
The deeds were promptly recorded. In making his purchase from Hynote of the land in question when it was in the open ually and as partners, filed their voluntary
January, 1922, the Ward brothers, individpossession of a tenant holding under the
petitions in bankruptcy, and were adjudiadministrator of the estate of Isaac Sayles, deceased, was influenced by any act or
cated bankrupts. The trustee in bankruptomission of the plaintiffs furnishing any Ward, alleging that the conveyances were
cy filed a bill of complaint against Mrs. basis for an inference that they acquiesced made for the purpose of defrauding crediin a claim by Hynote that he was owner of the land sued for. The possession of the tors of the bankrupts. After final hearing, land sued for at the time of defendant's the District Court entered a decree, canceldealing with Hynote indicated that the land ing the deeds and awarding possession to the
trustee. Mrs. Ward appeals. was then held adversely to Hynote. The court did not err in making the last-men- truck from the Dunlap Hardware Company.
In June, 1920, Leslie Ward purchased a tioned ruling. The conclusion is that the record shows
The purchase price was $2,650, payable $300
in October, 1920, $500 in January, 1921, and no reversible error. The judgment is affirmed.
the balance in installments during 1921 and 1922. Payments were secured by mortgage on the truck, and in 1921 by a further mortgage on a crop of Sudan grass. On August 30, 1920, the bankrupts purchased a
tractor from W. S. Edwards. The purchase WARD V. SCALES.
price was about $3,300, of which $500 was (Circuit Court of Appeals, Fifth Circuit. De paid in cash, and the balance was payable cember 9, 1924.)
in installments of $600 in 30 days, $600 in No. 4250.
60 days, and $1,625 in September, 1921. The
deferred payments were secured by mortBankruptcy Om 303 (3) --Conveyance by bank- gage on the tractor and other farm machinrupts held not invalid, as in fraud of creditors,
ery, and also by a mortgage on a 100-acre A conveyance of land by bankrupts, broth- wheat crop to be planted in the fall of 1920. ers, to their mother, more than a year prior to bankruptcy, and at a time when their indebted- George Ward testified that he was unwillDess was very small outside of two claims, ing to make his interest in the real estate which were otherwise secured, held, on the evi- inherited from his father liable for the purdence, to have been made in good faith, and not chase price of the tractor, and that Edinvalid, as in fraud of creditors.
wards expressed his satisfaction with the
security covered by the mortgages upon the Appeal from the District Court of the tractor, machinery, and wheat crop. The United States for the Northern District of tractor was not new, and the bankrupts Texas; James C. Wilson, Judge.
spent about $300 in repairing it. Suit in equity by Rollie H. Scales, trustee At the time the conveyances were made in bankruptcy of Leslie Ward and George to the appellant, the bankrupts' past-due inWard against Ama A. Ward. Decree for debtedness to the Dunlap Hardware Com
pany was $300, and that to Edwards was resented, and that they should be given cred$1,200. There were two other small unsecured it for the money spent by them in repairclaims, amounting to less than $200, against ing it. Dunlap and his son were interested Leslie Ward, but none against George as creditors, and it is admitted that Leslie Ward, who was only 21 years of age. The Ward promptly and vigorously challenged father and mother of the bankrupts were di- the construction which they placed upon the vorced in 1916, and both before and after conversation he had with them. It elsewhere the father's death in 1918 the mother had appears in the evidence that the bankrupts been making advances of money to the bank- proceeded, in apparent good faith, to plant rupts. The advances so made to Leslie the crop of wheat, and that their inability to Ward were approximately equal to the val- pay their debts came about because of the ue of the land be inherited from his father. failure of crops. Those made to George Ward were not more When the conveyances, which are attackthan one-half of the fair value of the land ed, were made, George Ward was not inhe inherited. The appellant and her two debted at all, except for the tractor, and had sons testified that the deeds in question were the right to give to his mother the land he executed in satisfaction of such advances. had inherited from his father. Leslie The wheat and Sudan grass crops proved to Ward's indebtedness, aside from that to his be failures, and the claims of other credi- mother, was insignificant, and so far as tors accrued after the deeds to the appel- then could be foretold his farming operalant were executed.
tions would be a success. But, if it be asEdwards testified that in November, 1920, sumed that Leslie Ward made the statements Leslie Ward stated that, if there was to be attributed to him, it nevertheless appears any trouble about the past-due indebtedness that he was indebted to his mother in an on the tractor, he and his brother would amount approximately equal to his interest protect themselves. On the other hand, Les- in the lands conveyed, and that she accepted lie Ward testified that the tractor was not the property in payment of her debt. The as represented, and that he stated to Ed- evidence does not tend to show that the apwards the intention of protecting himself pellant accepted the title to the land with against defects in the machinery he had any reservation or secret interest for the bought. Dunlap and his son testified that in benefit of the bankrupts, or either of them. November or December, 1921, Leslie Ward Her title, therefore, is unaffected by any stated to them that the deeds had been made representation which Leslie Ward might by him and his brother to their mother in have made to his secured creditors. Coder order to prevent Edwards from subjecting V. Arts, 213 U. S. 223, text 241, 29 S. Ct. their land to the payment. of his claim, grow- 436, 53 L. Ed. 772, 16 Ann. Cas. 1008; Reing out of the purchase of the tractor. Les- pauno Chemical Co. v. Victor Hardware lie Ward contradicted this evidence, and Co., 101 F. 948, 42 C. C. A. 106. The eviDunlap's son testified that he repeated this dence, therefore, does not sustain the conconversation to the appellant, and that the clusion that the transfers were fraudulent next day Leslie Ward came to him much within the meaning of section 70 of the incensed, and strenuously denied that he had Bankruptcy Act (Comp. St. $ 9654). The ever made the statement attributed to utmost disclosed is a preference of one credhim.
itor over others. The deeds to the appellant If it were not for the admissions which it were recorded more than four months prior is claimed Leslie Ward made to Edwards to bankruptcy, and therefore cannot be set and the Dunlaps, the record would be bar- aside on the ground of a preference under ren of any evidence tending to show that section 60b of the Bankruptcy Act (section the deeds were executed for the purpose of 9644). defrauding any creditor. The testimony of The decree of the District Court is reEdwards was clearly insufficient to raise a versed, and the cause remanded for further presumption of fraud. The bankrupts were proceedings not inconsistent with this opininsisting that the tractor was not as rep- ion.
263 8 F.(20) 263 BUFORD V. NORTH AMERICAN ACCI. of life, limb, sight, or time by accidental DENT INS, CO.
means, and for loss of sight, use of limb, or (Circuit Court of Appeals, Fifth Circuit. De time by illness, as herein limited and providcember 10, 1924. Rehearing Denied ed”—and provides that the insurance comJanuary 30, 1925.)
pany, "subject to the conditions, limitations, No. 4427.
and provisions herein contained, does hereby
insure" the plaintiff "in the principal sum Insurance m467—Accident policy held not to
impose liability for loss of eye more than of seventy-five hundred dollars (herein called 90 days after accident.
the principal sum) and in the sum of twentyA policy insured plaintiff, “subject to the five dollars a week (herein called the weekly conditions, limitations, and provisions herein indemnity) againstcontained," against accidents which resulted in
"(1) Bodily injury sustained during the total or partial disability or death. It contained a schedule of injuries, among which was
term of this policy through accidental means the loss of an eye, and provided that, “if with. (excluding suicide, sane or insane, or any in 30 days from the date of the accident attempt thereat, sane or insane), and rethe insured suffers
one of sulting directly, independently and excluthe said injuries," he might at his election receive the amount of the indemnity set opposite sively of all other causes, inthe said injury in the schedule. Plaintiff re- “(a) Immediate, continuous, and total ceived an injury to his eye which did not cause disability that prevents the insured from total or partial disability, but resulted a year performing any and every kind of duty perlater in the loss of the eye. Held, that such
taining to his occupation; injury, not having been suffered within 90 days, was not within the policy.
"(b) Immediate (as respects the injury
or as respects preceding total disability) and In Error to the District Court of the continuous partial disability that prevents United States for the Eastern District of the insured from performing fully work Texas; W. Lee Estes, Judge.
essential to the duties of his occupation.
"(c) Death; Action at law by Thomas E. Buford
"(2) Illness, as hereinafter defined," etc. against the North American Accident Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed. “Accident Indemnities. Total Disability.
E. E. Easterling and C. W. Howth, both “Art. 4. If the insured suffers total disof Beaumont, Tex. (M. S. Duffie and Howth, ability, the company will pay the insured Adams, O'Fiel & Hart, all of Beaumont, so long as he suffers said total disability the Tex., on the brief), for plaintiff in error. weekly indemnity.
C. T. Duff, of Beaumont, Tex. (Edward St. Clair, of Chicago, Ill., and F. J. & C.
"Partial Disability. T. Duff, of Beaumont, Tex., on the brief), “Article 5. If the insured suffers partial for defendant in error.
disability, the company will pay the insured Before WALKER and BRYAN, Circuit for the period of such partial disability, not Judges, and CLAYTON, District Judge. exceeding fifty-two weeks half the weekly in
“Death. BRYAN, Circuit Judge. This is a suit on an accident policy. The plaintiff, a real es- “Article 6. If the insured suffers total tate agent, while a passenger on a railroad disability, and if, during the period of said train, suffered an accidental injury to his total disability, the insured suffers death as left eye. He promptly consulted a physi- the direct result of the bodily injury causcian, who attempted to prevent the loss of ing the said total disability; or, if within sight, and did not give up the hope of do- ninety days from the date of the accident, ing that until more than a year after the irrespective of total disability, the insured injury, when the injured eye was removed. suffers death, the company will pay the prinThe facts are not in dispute. The policy cipal sum, and, for such part of the period was in force at the time of the accident and between the date of the accident and the until after the eye was removed. Defend- date of death as the insured has not been ant's liability turns upon the question wheth- paid a weekly indemnity, an additional sum er the policy provides indemnity for the of the weekly indemnity. loss of the eye occuring more than 90 days after the accident.
“Optional Indemnity. The policy contains the following caption: "Article 7. Or, if the insured suffers to“This policy provides indemnity for loss tal disability and if, during the period of