said total disability and within two hundred weeks from the date of the accident, the insured suffers, as the direct result of the bodily injury causing the said total disability and independently and exclusively of all other causes, one of the injuries defined in the schedule of injuries set forth hereon; or, if within ninety days from the date of. the accident, irrespective of total disability, the insured suffers in like manner one of the said injuries—the insured may elect to receive the amount of indemnity set opposite said injury in the said schedule, together with the weekly indemnity for the period between the date of the accident and the date that the insured suffers the injury defined in said schedule in lieu of all other indemnity under this policy except surgeon's fees and hospital charges to which he may be entitled," etc.

Attached to the policy is a schedule of injuries arranged in two sections. The irrevocable loss of the sight of one eye, resulting from an accident sustained while the insured is riding as a passenger of a common carrier, is fixed at the principal sum of $7,500. The district judge, a jury being waived in writing, entered judgment for the defendant, and the plaintiff assigns error upon the refusal of a motion for judgment in his favor.

The insurance is not against bodily injury only, but is limited to such bodily injury as results in immediate and continuous total or partial disability, death, or illness. Total disability must be such as to prevent the insured from performing any duty pertaining to his occupation, and partial disability must be such as to prevent the insured from performing fully work essential to the duties of his occupation. In the event of total disability, the company agrees to pay the weekly indemnity so long as such disability lasts, and, in the event of partial disability, to pay the weekly indemnity for a period not exceeding 52 weeks. As the plaintiff was able to engage, without interruption, in his business of real estate agent, he did not suffer even a partial disability within the meaning of the policy. He therefore never became entitled to the payment of a weekly indemnity. In addition to the weekly indemnity, the policy provides, under article 7 above quoted from, for the payment of a lump sum indemnity, in case the insured, within the periods of time therein named, suffers one of the injuries listed

in the schedule. Plaintiff suffered one of such injuries, to wit, the loss of his eye; but as that loss did not occur within 90 days from the date of the accident, and was not suffered during a period of total disability, we are of opinion that he is not entitled to recover the lump sum indemnity. This construction of the policy is strengthened by reference to the lump sum indemnities provided for total disability and for death. In case of total disability, and during the period thereof, and within 200 weeks from the date of the accident, if the insured suffers one of the injuries listed in the schedule, he is entitled to a lump sum indemnity. Again, if the insured suffers total disability and during the period thereof suffers death, the company agrees to pay the principal sum, as well as the weekly indemnity for the period between the date of accident and the date of death. And the company also agrees to pay the principal sum and the weekly indemnity irrespective of total disability if the insured dies within 90 days from the date of the accident. In articles 6 and 7, which contain the provisions just referred to, the periods covered by the policy are set out and made to differ according to whether the accident results in death, in total disability or in partial disability. The policy does not insure against scheduled losses resulting from accidents for indefinite periods of time.

Plaintiff relies upon the caption of the policy providing indemnity for loss of sight, but ignores the statement therein contained that such indemnity is limited by the provisions of the policy. He also seeks to separate the bodily injuries sustained from the limitations which make it a condition precedent to liability that such injuries shall result in immediate disability, death or illness. We think such a construction is untenable, and does violence to the clear and explicit provisions of the policy. The language of the policy is not ambiguous and to be construed against the company, because it prepared the contract. Plaintiff relies on the cases of Continental Casualty Co. v. Colvin, 77 Kan. 561, 95 P. 565, and Rorick v. Railway Ass'n, 119 F. 63, 55 C. C. A. 369. The policy in this case is different from the policy sued on in either of the cited cases, and besides the disability in the Colvin Case and the death in the Rorick Case occurred within 90 days from the date of the accident. The judgment is affirmed.

Mines and minerals 79(1)-Deed to royalty held to convey interest in realty under terms of lease.

An oil lease provided that, on the production of oil in paying quantities, the lessee should become at once vested with an estate in all minerals, including oil. Assignees of the lease produced oil in paying quantities, after which one sold his interest to the other, but reserving an overriding royalty which he afterward conveyed to defendant by deed. Held, that such deed conveyed an estate in the land, which, so long as the lease remained in force, it was not within the power of the parties to the assignment to divest by an attempted cancellation and annulment of the assignment.

BRYAN, Circuit Judge. This suit was brought by the Little Six Oil Company, appellee, to cancel a deed from Sloan A. Emerson to his wife, Marie T. Emerson, which purports to convey an overriding royalty of 1 per cent. in an oil and gas lease of 45 acres of land. Emerson and his wife, the appellants, answered and prayed for a decree sustaining the validity of the deed and establishing in Mrs. Emerson the royalty interest thereby conveyed.

The facts are not in dispute. The original lease was from the owner of the feesimple title, Oscar Chesson, to one Dodd, by whom it was assigned to the Little Six Oil Company, appellee. That lease conveys all of the oil and gas in and under the land, also the exclusive right of drilling, and reserves to Chesson one-eighth of all oil produced. It provides that if oil be found in paying quantities, the lessee shall become at once vested with an estate in and to all minerals, including oil, underlying the land, as long as any of said minerals shall be produced in paying quantities.

265

After oil in paying quantities is found, the lessee is given the right either to continue to develop the property or to abandon operations and surrender the lease. The rights granted extend to the heirs, legal representatives, and assigns of the lessee.

Appellee assigned the original lease to Noble and Emerson upon the following conditions: That they would promptly begin active operations in the drilling of wells; that upon the completion of the first well, they might drill other wells in conformity to the requirements of the original lease, and in the event they should elect to 'abandon operations, they should give appellee 45 days' prior notice; and that if the production of oil should reach 100 barrels per day, the appellee, upon paying one-half the costs of previous drilling and operating expenses, should be entitled to one-half of the oil produced.

Noble and Emerson drilled a well which produced oil at a rate in excess of 100 barrels a day. Thereafter, Emerson conveyed by deed to Noble, for a consideration of $10,000, all his interest except an overriding royalty of 1 per cent., which he reserved in all the oil to be produced from the property. Subsequently Emerson conveyed the royalty so reserved to his wife.

Noble continued operations under the lease, drilled a second oil-producing well, and afterwards entered into an agreement with the appellee, which recited that the contract between the appellee on the one part and Noble and Emerson on the other was "set aside, annulled and canceled," and by which the appellee assigned to Noble all its rights in the north half, and Noble in turn assigned to it all his rights in the south half, of the tract of land held under the original lease from Chesson. In order to protect their rights under the original lease, this partition agreement provides, in the event either party should desire to cease operations, for prior notice of 60 days to the other party, who thereupon should become entitled to the entire interest in the whole lease, and to do anything necessary to prevent a forfeiture. At the time the property was so divided, Noble notified the appellee of the reservation by Emerson of 1 per cent. royalty, and besides the appellee had knowledge from an examination of the abstract of title that such reservation had been made.

The original lease has not been abandoned. Appellee sold its interest in the south half and reserved a 1/24 royalty. The companies now operating the property

purchased from the appellee and have been withholding the royalty reserved by Emerson. They were made party defendants, and offered to pay into the court the fund already accumulated, and in the future to pay to the appellee or to Mrs. Emerson the royalty in dispute, in accordance with the decree of the court.

The District Court entered an order canceling the royalty deed from Emerson to his wife, and directing the producing companies to pay, without deducting 1 per cent., the full 1/24 royalty to the appellee.

Upon the production of oil in paying quantities, an estate in the land was created, subject to be divested upon condition subsequent; that is, the failure to comply with the terms of the original lease. The estate so created was a base fee. Stephens County v. Mis-Kansas Oil & Gas Co., 113 Tex. 160, 254 S. W. 290, 29 A. L. R. 566. As the lease remains in force, the estate still exists. Emerson's conveyance to his wife was made after the estate vested. The reservation of the royalty was therefore an interest in the land, and not a mere personal right enforceable only against Noble. It is immaterial that the partition agreement between Noble and the appellee referred to the former assignment of the lease by the appellee as being canceled and annulled. All that was meant by that expression, as it appears to us, is that one contract was being superseded by another. But, aside from that, Noble had no power to dispose of Emerson's vested interest, if it be conceded, contrary to the fact, that he attempted to do so. Emerson's assignment of all his interest except the royalty which he reserved was not an abandonment of the lease, and is no more open to attack than is appellee's assignment of its interest to the companies which are at present operating thereunder. All that was required was that the lessee or his assigns comply with the terms and conditions of the lease. It is immaterial whether the acts essential to such compliance are performed by the original or a subsequent lessee. Forfeiture is carefully guarded against, both in appellee's contract with Noble and Emerson and partition agreement with Noble.

The conclusion we reach is that the court should have denied the relief asked by the appellee, and granted that prayed for by the appellants.

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

BANQUE RUSSO-ASIATIQUE v. DOLCH. (Circuit Court of Appeals, Ninth Circuit. January 5, 1925.)

1. Contracts

No. 4297.

47-Agreement by employee to deferred payment of salary held unenforceable as without consideration.

Agreement by an employee that payment of salary then due him under his contract might be deferred held without consideration and not enforceable.

2. Contracts 212(1)-Agreement by employé to wait for his salary held to bind him only for reasonable time.

An agreement by an employee to wait for salary due him until the employer resumed business in a designated place, as then intended, held to bind him to wait only a reasonable time.

In Error to the District. Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge.

Action at law by Edward Dolch against the Banque Russo-Asiatique. Judgment for plaintiff and defendant brings error. Affirmed.

Alan C. Van Fleet, of San Francisco, Cal. (Evarts, Choate, Sherman & Leon, of New York City, of counsel), for plaintiff in error.

Morrison, Dunne & Brobeck, Herman H. Phleger, and H. A. Judy, all of San Francisco, Cal., for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge. The defendant in error, as the assignee of one John M. Grant, recovered a judgment in the court below for $18,000, being the balance of salary claimed to be owing to Grant by the plaintiff in error for services rendered as its representative. The bank relied upon the defense that, while the said sum for which the judgment was rendered was its just debt, it was not yet due and payable.

[1] Grant's services to the bank began in June, 1919, under a.contract in writing. He was to be paid a salary of $6,000 per annum. The contract was by its terms terminable at the will of either party. It was terminated on December 31, 1921, at which time there was a balance owing to Grant of $18,000. The contention that payment was not due at the time when the present action was begun rests upon the contents of two letters. On August 30, 1921, Grant wrote to the bank, acknowledging receipt of a payment on account and saying: "I here

cisco. From orders denying the petitions, they appeal. Affirmed.

William H. Wylie, of San Diego, Cal., and J. H. Sapiro, of San Francisco, Cal., for appellants.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.

Applicant Soo Hoo Mook, 12 years old, said his father had been married twice, but that he had no recollection of his mother,

who died when he was only 1 or 2 years old. The other boy, Soo Hoo Hung, 8 years old, stated that he and Soo Hoo Mook had different mothers, and that just before he left China the two Chinese women, his mother and Soo Hoo Mook's mother, were

HUNT, Circuit Judge. These are appeals by Soo Hoo Hung and Soo Hoo Mook from orders of the District Court denying their petitions for writ of habeas corpus. Appellants are Chinese boys, 8 and 12 years old, respectively, who arrived in the United States in August, 1923, seeking admission as sons of Soo Hoo Hing, a citizen of the United States. Immigration officials denied the applications, and upon appeal the Secretary of Labor dismissed the proceeding.

Soo Hoo Hing is a citizen of the United States, and the question throughout the proceedings has been as to the alleged relationship of father and sons, said to exist between him and the boys. It is established by the record that Soo Hoo Hing made four trips to China and that his visits in point of time made it physically possible for him to be the father of the boys; but the board of review found material discrepancies between his testimony given in the present matter and that given by him on a former occasion (1922), when he swore that he was the father of one Soo Hoo Jin, who was eventually deported because the claimed relationship did not exist.

There were also discrepancies in some of his statements of the dates of the birth of two of his alleged sons, and also concerning his married relations. For instance, in October, 1913, Soo Hoo Hing said that he had been married twice, and that his first wife, Hom Shee, had three boys, and that she died in April, 1913; while in the present inquiry he said he married his second wife in December, 1912, and that his first wife died in April, 1912. Upon his return from a trip to China in 1915, he said he had married his second wife on November 12, 1913. Discrepancies were also found between the statements of the applicants themselves, although the board of review stated that, in the case of the younger applicant, his tender age was to be considered in weighing his testimony.

father's second wife lived. Discrepancies in the statements of persons who accompanied the boys on their journey to the United States were noticed by the board of review, but they deemed those above referred to sufficient to discredit the testimony of Soo Hoo Hing, and to establish as a fact that the relationship claimed did not exist.

There is no reason for saying that the immigration officials and the District Court arbitrarily disregarded the testimony. The material differences in the several statements of the alleged father justified the conclusions of the immigration authorities. White v. Chan Wy Sheung (C. C. A.) 270 F. 764, certiorari denied 257 U. S. 654, 42 S. Ct. 95, 66 L. Ed. 419.

It is said that there was exclusion of some testimony bearing upon the question whether or not one Soo Hoo Lit, said to have accompanied the boys on the ship, was

their uncle. All that the record shows is that several lines in the testimony of one of the applicants before the board of special inquiry were obliterated by a letter on the typewriter. When or under what circumstances the obliteration was made does not appear; nor does it appear that any omission has been made in the official transcript, or that there was any unfairness or irregularity in the certificate made by a member of the board to the effect that the record of the hearing in the proceeding is correct. We must presume that the transcript is accurate.

Appellants say that the files in the case of Soo Hoo Jin, an alleged son of Soo Hoo Hing, who was deported, though considered in the decision of the applications under consideration, were never brought to the attention of the applicants. The record refutes the contention by showing that the entire record was given to the attorney for these applicants, and that he later returned certain exhibits, which included the files and the exhibit, which it is now said were not brought to the attention of the applicants.