GILBERT, Circuit Judge (after stating the facts as above). Error is assigned to the rejection of the deposition of Alexander and of his deed to the plaintiff in error, made after the commencement of the action. In ejectment the plaintiff must recover, if at all, upon the state of his title as it subsisted at the time of the commencement of the action. Evidence of any after-acquired title is inadmissible, unless the foundation therefor has been laid by a supplemental complaint, under the authority of a statute which permits the filing thereof in actions. at law. There is such authority in section 98, p. 164, Carter's Code Civ. Proc. Alaska, which provides that:

"The plaintiff and defendant respectively may be allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply."

The rule of practice under such statutes is similar to that of the chancery courts in reference to supplemental bills, and the supplemental complaint differs from an amended complaint in that it does not take the place of the original pleading, but stands with it and adds to it some fact which has occurred since the beginning of the action. That fact must be set forth in the supplemental complaint. If the fact be that the plaintiff in ejectment has, since the commencement of the action, acquired a new or different title from that on which he brought his action, he must allege the fact, so that the defendant may be apprised of what he is required to meet. In Musselman v. Manly, 42 Ind. 462, the court said:

"A supplemental complaint is not, like an amended complaint, a substitute for the original complaint, by which the former complaint is superseded; but it is a further complaint, and assumes that the original complaint is to stand. A supplemental complaint must consist of facts which had arisen since the filing of the original complaint, * and must show upon its face that

it is supplemental, and relates to matters which had occurred subsequent to the commencement of the action."

Cases in point are Reily v. Lancaster, 39 Cal. 354; Roper v. McFadden, 48 Cal. 3416; Taylor v. Gooch, 110 N. C. 387, 15 S. E. 2; Johnson v. Briscoe, 92 Ind. 367; Samuel Kahn v. Old Telegraph Mining Co., 2 Utah, 174; Hardy v. Johnson, 1 Wall. 371, 17 L. Ed. 502.

It is argued that the so-called amended complaint was in fact a supplemental complaint, sufficient to bring to the attention of the court and the opposite party notice of a fact which occurred subsequent to the commencement of the action, and that the language of the motion for leave to file it, in referring to facts occurring since the filing of the original complaint, advised the defendants that it was a supplemental complaint, upon which the plaintiff proposed to introduce evidence of the newly acquired title. We may concede that, while a supplemental complaint should properly be designated as such, nevertheless, under the liberal rules of code pleading, the name given to the pleading by the pleader may be disregarded, and its true nature may be determined by the allegations which it contains. But the question here is whether the allegations of the so-called amended complaint were such as to indicate that it was in fact a supplemental complaint, and that the plaintiff in the action intended to offer proof of a title acquired after its commencement. To this question there can be but one answer.

There was no allegation that the plaintiff had or intended to rely on a title acquired since the commencement of the action. The allegation that the plaintiff claimed under locations made on and subsequent to August 1, 1900, "who thereafter conveyed to said plaintiff," was not a statement of a fact occurring after the commencement of the action. But it is contended that the defendants in error waived their right to question the amended complaint, or to deny that it was a supplemental complaint, by going to trial without demurring thereto, and authorities are cited to the proposition that where no cause of action is stated in the original complaint, and a supplemental complaint is filed for the purpose of setting up a cause which has subsequently arisen, and the defendant makes no objection to such supplemental complaint, but permits the cause to be heard on the merits, he waives all objection to the supplemental complaint based on the insufficiency of the original complaint. But the doctrine of those decisions is not involved. In this case the original complaint sufficiently and properly pleaded a cause of action in ejectment. The same may be said of the amended complaint. There was nothing, therefore, to be waived by the defendants by going to trial, as they did, without demurring to the second complaint, which apparently was intended to take the place of the first. The motion which they made to require the plaintiff to set forth more definitely the nature of his claim of title could have been denied by the court only upon the theory that the second complaint was in fact what it purported to be, an amended complaint. As an amended complaint, to stand in place of the original complaint, it contained all the averments essential to good pleading in ejectment; but as a supplemental complaint it was fatally defective in not specifying the facts which had arisen since the commencement of the action, and which made a supplemental complaint

necessary.

The judgment is affirmed.

SHERIDAN v. SOUTHERN PAC. CO.†

(Circuit Court of Appeals, Ninth Circuit. May 26, 1910.)

No. 1,773.

1. EJECTMENT (§ 116*)—JUDGMENT—ÅDJUDGING VALIDITY OF DEFENDANT'S TITLE.

In ejectment, where both parties allege title and the evidence sustains that of defendant, it is not error for the court to render an affirmative judgment in his favor, adjudging him to be the owner of the property and entitled to possession.

[Ed. Note. For other cases, see Ejectment, Cent. Dig. § 360; Dec. Dig. § 116.*]

2. EJECTMENT (§ 17*)-TITLE TO SUSTAIN ACTION-DEED INTENDED AS MORT

GAGE.

Conceding that a deed given as a mere security for an existing debt is not effective to transfer the legal title or right of possession of the mortgaged property from the grantor to the grantee, nevertheless the voluntary surrender of actual possession to the grantee as further security is lawful, and may be effective to create a legal right of possession suf For other cases see same topic & § NUMBER in Dec. & Am, Digs, 1907 to date, & Rep'r Indexes 179 F.--6 † Rehearing denied October 3, 1910.

ficient to bar a right of recovery in an action of ejectment by the mortgagor against the mortgagee.

[Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 63, 64; Dec. Dig. § 17.*]

3. EJECTMENT (§ 95*)-TITLE TO SUSTAIN ACTION-EVIDENCE CONSIDERED. Evidence considered, and held insufficient to establish a legal title to real estate in plaintiff which entitled him to recover in ejectment.

[Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 280–295; Dec. Dig. § 95.*]

In Error to the Circuit Court of the United States for the District of Oregon.

Action by T. R. Sheridan against the Southern Pacific Company. Judgment for defendant, and plaintiff brings error. Affirmed.

W. C. Bristol, E. B. Watson, and Frank P. Deering, for plaintiff in

error.

Wm. D. Fenton, R. A. Leiter, Ben C. Dey, James E. Fenton, and Williams, Wood & Linthicum, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HANFORD, District Judge.

HANFORD, District Judge. This is a plain action of ejectment, in which the respective parties each claim certain real estate situated in Oregon by a legal title in fee simple and right of possession, and each maintains that the case must be determined with respect merely to legal rights, as contradistinguished from rights maintainable only in equity. The pleadings are brief; the only issues being as to the disputed title and the plaintiff's demand for damages. On the trial the Circuit Court granted a motion for an instructed verdict in favor of the defendant, and upon the verdict rendered a judgment adverse to the plaintiff and affirming the defendant's claim of title and right of possession. The evidence which the court admitted proves that the real estate records of the county in which the property is situated contain the following muniments of title, viz.:

(1) A written contract, executed and recorded on the 25th day of August, 1890, by C. H. Merchant and R. A. Graham, which recites that Merchant had subscribed $10,000 to a subsidy fund to promote the building of a railroad, which subscription Graham assumed to pay; and the contract stipulates that in consideration of Graham's assumption of that obligation and the benefits expected to accrue from the building of the railroad, etc., Merchant shall convey certain property, including that which is the subject of controversy in this action, to the plaintiff as trustee, and it defines the powers and duties of said trustee as follows:

"Said trustee shall take and hold the title to said property so to be con. veyed in trust for the following purposes, to wit: He shall have full power to sell and convey for cash, or on time, and to contract for the sale and conveyance of any portion of said trust property unconditionally in such manner and upon such terms and prices as the said Graham shall direct, to carry out the objects of this trust; to receive the purchase money therefor and all notes and mortgages executed as part payment therefor. Out of the proceeds of any sales of said property the said trustee shall pay to said R. A. •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Graham such sums as shall actually be used in the construction of the said line of railroad, or in the building of a hotel upon a part of said property, or in the building of wharves or other improvements upon said property that may be made by said Graham. When said railroad is completed to a point at or near Myrtle Point, the said trusteeship shall cease, and said trustee shall convey to said Graham all unsold portions of said property, and transfer to him all notes, mortgages, or other assets in his hands as such trustee, absolutely and without condition."

(2) A deed conveying said property to the plaintiff as trustee, executed by Merchant and his wife on the 16th day of October, 1890, and recorded on the 21st day of the same month, which deed, by reference, has incorporated into it the above-described contract.

(3) A deed conveying the property which is the subject of this action to J. D. Spreckels & Bros. Company for the expressed consideration of $50,000, executed by the plaintiff as trustee the 22d day of August, 1893, and recorded November 10, 1893. On its face this deed appears to be an unconditional conveyance of a fee-simple title and warranty of said title.

The above mentioned instruments are referred to in the record, respectively, as Exhibits 1, 2, and 3.

(4) A deed to the Bank of California, executed by the J. D. Spreckels & Bros. Company and R. A. Graham on the 8th day of June, 1899, and recorded the 19th day of July, 1907.

(5) A deed to the J. D. Spreckels & Bros. Company, executed by the Bank of California on the 15th day of May, 1907, and recorded on the 19th day of July, 1907.

(6) A deed to the defendant, executed by the J. D. Spreckels & Bros. Company July 2, 1906, and recorded July 31, 1906.

These last three conveyances are respectively identified in the record as Exhibits A, B, and C. The property which is the subject of this action is included in each of them, in form they are absolute conveyances, and Exhibit C contains covenants of general warranty of the title.

On the trial it was proved by uncontradicted evidence that the railroad was completed to Myrtle Point prior to the time of the execution. of the deed referred to as Exhibit 3. Therefore, at that time the plaintiff held the title as a mere naked trustee, having no authority with respect to the property, except to convey it to Graham, whose right to it had become fixed and absolute according to the specifications of the trust in Exhibits 1 and 2, and it is a conceded fact that he had actual possession of the property until a date subsequent to the execution of the conveyance which is the last link in the chain of title.

One of the alleged errors for which a reversal of the judgment is urged is the ruling of the court in granting the defendant's motion for an instructed verdict and in rendering a judgment declaring the defendant to be the owner in fee simple and entitled to possession of the property. In their brief counsel for the plaintiff say:

"A judgment of nonsuit, in effect, was all the defendant in error was entitled to under the view entertained by the court."

The pleadings, however, make an issue as to the defendant's claim of title, as well as an issue as to the plaintiff's claim, and the defendant

acted within its rights in submitting proof and insisting upon a full determination of both issues; and to make proof sufficient to support its claim of ownership it was only necessary to introduce the deeds by which the title conveyed to the plaintiff by Exhibit 2 was transmitted to and became finally vested in the defendant. Under a rule of practice, applicable in litigation of controversies respecting real estate titles, the title of the grantor from whom all the litigants deraign is presumed to be legal. The deeds in evidence make a complete chain of conveyances from Merchant and his wife, through the plaintiff, as trustee, and Graham, to the defendant, and a perfect record title. When the action was commenced the defendant was, prima facie, the holder of the legal title and in actual possession, and the judgment of the Circuit Court is right in law, unless it is reversible for prejudicial error in rejecting evidence offered in behalf of the plaintiff to prove aliunde that Exhibit 3 is not what it purports to be; i. e., a conveyance of the legal title, but a mere mortgage. The plaintiff's contention is based upon the postulate that a mortgagor of real estate holds the legal title, and is entitled to maintain possession against the mortgagee as well as others; and he maintains that, in an action at law against a mortgagee in possession, the mortgagor is entitled to recover by virtue of his legal title.

On the trial he offered evidence to prove facts in substance as follows: That Graham, the cestui que trust, was indebted to him in an amount aggregating $50,000 for money advanced and expended in promoting and constructing the railroad; that by an agreement between Graham and himself the property, which he took as trustee, should be held by him as security for the payment of that indebtedness; that Graham was also indebted to the J. D. Spreckels & Bros. Company for money expended in constructing the railroad in the amount of $185,000; that, in the execution of a scheme for financing the enterprise, Graham intrusted to the J. D. Spreckels & Bros. Company securities to be used in raising money to pay his debts, including those above mentioned, and as part of that scheme the deed Exhibit 3 was executed and delivered, and there was no consideration for the giving of that deed, other than the agreement of the grantee to raise the necessary funds by use of the securities taken and to apply the same in payment of Graham's debts, and for the completion and betterment of the railroad; that the debt which Graham owed to him has not been paid; that the property, the title to which is the subject of this action, was in Graham's possession until a short time prior to the commencement of this action; and that the defendant had actual knowledge of the conditions and circumstances under which the deed, Exhibit 3, was given, and the purposes for which it was given, at and previous to the time of accepting the deed, Exhibit C.

In the determination of the question presented by the assignment of error predicated upon the ruling of the Circuit Court in excluding the evidence offered, this court must have in view the situation and rights of the parties at the time of the commencement of the action, rather than the time of the transaction which included the giving of the deed, Exhibit 3. Conceding that a deed given as a mere security for an exîsting debt is not effective to transfer the legal title or right of posses