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sion 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 sufficient to bar a right of recovery in an action of ejectment by the mortgagor against the mortgagee. It is to be noted that the plaintiff made no offer to prove that Graham's debt to the J. D. Spreckels & Bros. Company had been extinguished prior to the execution and delivery of the conveyance to the Bank of California, Exhibit A, in which Graham joined as grantor, and there was no offer to prove the exact time when, nor the circumstances and conditions under which, possession of the property was taken by, or surrendered to, the defendant or its grantor. If the possession was voluntarily delivered by the holder of the legal title as further security for Graham's debts, or in consideration of a discharge of his obligations, or a substantial part thereof, there can be no legal ground for repudiation of the transaction. On the facts shown by the record, supplemented by the facts which the plaintiff offered to prove, the aspect of the case is entirely different from what it would be if the defendant or its grantor had acquired possession of the property by means of duress, force, or fraud. In the argument the plaintiff's counsel has tried to maintain that the possession of the defendant is a wrongful possession, as it would be if possession had been taken without judicial process and against the will of the holder of the legal title; but duress, force, and fraud are things not presumed by courts in judicial proceedings, as they must be shown affirmatively by a party who relies upon such grounds for the maintenance of a legal right. These considerations lead to the conclusion that the evidence offered was not sufficient to entitle the plaintiff to recover, and that the ruling of the court excluding it was not prejudicial error.

The attitude of the plaintiff as a litigant, asserting the legal right of possession as an incident of a legal title, is inconsistent with any claim which he can assert as a creditor of Graham, for the reason that any rights of a mere security holder must necessarily be classed among those denominated "equitable rights," as contradistinguished from legal rights. As a creditor, he could only claim a lien, which would not be a right sufficient to warrant a recovery of possession in an action of ejectment prior to a foreclosure of his lien.

On a general view of the whole record, it is the opinion of this court that at the time of the execution of the deed, Exhibit 3, the plaintiff's relationship to the property, in a legal sense, was that of a naked trustee holding the legal title for one purpose only, viz., to convey an absolute unconditional title to the cestui que trust. All of his other powers having been extinguished, as the trust deed provided they should be, if the conveyance which he made was by the consent and direction of the cestui que trust, it was valid, leaving in him no further right to control or interfere with the property, and, if not so authorized, it conveyed the legal title cum onere, and it was competent for the cestui que trust to make it complete and valid by his subsequent ratification and adoption in joining with the grantee in the execution of a deed conveying the entire property to the Bank of California. He might have repudiated the plaintiff's deed by timely action; but his own deed es

tops him, and a fortiori estops the plaintiff. The plaintiff cannot maintain the action in his own right, because he never owned the property, nor as trustee, because his powers as trustee were exhausted by his conveyance of the legal title.

For the reasons above stated, the judgment of the Circuit Court is affirmed.

EISLEBEN et al. v. BROOKS et al.

(Circuit Court of Appeals, Eighth Circuit. May 2, 1910.)

No. 3,125.

1. Frauds, STATUTE OF (§ 110*)—CONTRACTS RELATING TO REAL PROPerty— SUFFICIENCY OF DESCRIPTION.

A written contract, describing its subject-matter as the mineral rights on which the parties of the first part held options and such as they were in process of acquiring "in all or as much thereof as can be had of what is known as the Ouita coal basin, in Pope and Yell counties, in the state of Arkansas, as shown by Branner's Map of the Arkansas Geological Coal Survey, which basin approximates 10,000 acres, more or less," held to contain a sufficient description of the lands to meet the requirement of the Arkansas statute of frauds (Kirby's Dig. Ark. 1904, § 3654); the option contracts then held by the first parties, embracing over 5,000 acres, containing a specific description of the lands covered thereby.

[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 225236; Dec. Dig. § 110.*]

2. MINES AND MINERALS (§ 54*)-CONTRACT OF SALE-Measure for Breach. Where a contract for the purchase by defendants from plaintiffs of the mineral rights in certain lands, for which plaintiffs held options, gave de fendants the option to furnish funds to have the lands drilled, in which case they were bound to take only such as were shown to contain a coal vein, or to accept all the lands without drilling, in an action for breach of such contract by defendants by refusing to take the lands or to furnish the drilling fund, plaintiffs were not entitled to recover the contract price for all the lands and also the cost of drilling machinery purchased by them.

[Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. § 151; Dec. Dig. § 54.*]

8. MINES AND MINERALS (§ 54*)-CONTRACT OF SALE-BREACH OF CONTRACT TO FORM CORPORATION-DAMAGES.

In an action for breach of a contract by which defendants agreed to purchase from plaintiffs at a stated price the mineral rights in certain lands and to subscribe and pay for one half of the stock in a corporation to be organized by the parties, the other half to be issued to plaintiffs, where the corporation was to repay to defendants the amount paid by them for the mineral rights which exceeded the capital to be paid in by them, plaintiffs were not entitled to have the value of the stock so to be issued to them considered as an element of damages, in the absence of any evidence as to the value of the mineral rights upon which alone the value of the stock depended.

[Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. § 151; Dec. Dig. § 54.*]

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

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Action by William Brooks and John H. Ganner against Louis Eisleben, H. C. Reiner, and W. A. Miller. Judgment for plaintiffs, and defendants bring error. Reversed.

James C. Jones and Jacob Klein (Jones, Jones, Hocker & Davis, Thomas H. Sprinkle, and Klein & Hough, on the brief), for plaintiffs

in error.

Charles A. Houts (Jeff Davis, U. L. Meade, and Johnson, Houts, Marlatt & Hawes, on the brief), for defendants in error.

Before SANBORN, Circuit Judge, and RINER and WM. H. MUNGER, District Judges.

RINER, District Judge. This was an action at law to recover damages for the breach of a contract. In the third amended petition the defendants in error, hereafter called the plaintiffs, after setting out the jurisdictional facts, alleged, in substance, that on the 14th of May, 1907, they had acquired, and were then the holders and owners of, options entitling them to purchase from the owners thereof the coal and mineral rights in and under 5,052.51 acres of land, located in what is known as the "Ouita coal basin," in Pope county, Ark., as shown by Branner's Land Map of the Arkansas Geological Survey; that the land was specifically described in the options; that the plaintiffs, under the options, were entitled to purchase said coal and mineral rights at an average price of $1.10 per acre; that these facts were known to the plaintiffs in error, hereafter called the defendants; that on the 14th of May, 1907, the plaintiffs were without the money and means necessary to acquire the coal and mineral rights under said option; that the defendants knew this, and, being desirous of acquiring said coal and mineral rights, and other coal and mineral rights in the Ouita coal basin, in Pope and Yell counties, Ark., the plaintiffs, on the 14th of May, 1907, as parties of the first part, entered into a contract in writing with the defendants, as parties of the second part, by the terms of which it was agreed that the plaintiffs should convey, by proper conveyances, to the defendant Eisleben, as trustee, or to his successor in person, or corporation, all of said coal and mineral rights in said coa! basin then held under options by the plaintiffs, and such other mineral rights as the plaintiffs might thereafter acquire; that the parties to the contract should thereafter organize a corporation, under the laws of Arkansas, with a capital stock fully paid up and nonassessable, to which capital stock the defendants were to subscribe and pay for, in cash, the amount of $50,000; that, in addition to certain compensation to be paid to the plaintiffs for services in securing options on said coal and mineral rights and in organizing and promoting the business of the corporation, the parties of the first part were to receive under the terms of the contract one-half of the capital stock of the corporation; that by the terms of the contract the defendants undertook and agreed to furnish for immediate use a sum of money sufficient to drill said basin, and undertook and agreed that, in the event they failed to furnish said drilling fund, they would accept said mineral rights without drilling the land so optioned, and would pay the plaintiffs the sum of $15 per acre therefor; that, upon the execution and delivery of said

contract, plaintiffs proceeded to and did obtain options to purchase the coal and mineral rights in and under 284.50 additional acres of land in said basin; that by the terms of the options the plaintiffs were entitled to purchase said additional coal and mineral rights at an average price of $1.10 per acre; that the plaintiffs thereupon, on instructions from the defendants and in pursuance of the contract, proceeded to purchase certain drills and equipment necessary to drill said land, at a cost and expense of $3,000, a part of which cost and expense the plaintiffs paid, and for the balance of which they became liable.

It is then alleged that after the plaintiffs had acquired the additional options, and after they had purchased the drills and equipment, the defendants failed and refused to furnish the drilling fund, and failed and refused to pay for the drills and equipment so purchased by the plaintiffs; that they failed and refused to organize, or assist in organizing, a corporation as provided in the contract, and failed and refused to accept the mineral rights upon which the plaintiffs held options, and failed and refused to pay $15 per acre, or any part thereof, repudiated the entire transaction, and notified the plaintiffs that they would not carry out and perform the terms and provisions of the contract. It is further alleged in the petition that the plaintiffs have performed all of the terms and provisions of the contract by ther to be performed; that they have been and are willing to convey or cause to be conveyed to the defendants, or to the defendant Eisleben, as trustee, or to a corporation when formed, the coal and mineral rights upon which they held options. It is then alleged that, by reason of the failure of the defendants to perform their part of the contract, plaintiffs were unable to exercise their options and acquire the mineral rights thereunder, and claim that they have been damaged in the sum of $74,185.30. It is also alleged that, by reason of the failure and refusal of the defendants to pay for the drills and equipment purchased by the plaintiffs, the plaintiffs have been further damaged in the sum of $3,000; that by reason of the failure and refusal of the defendants to organize or assist in organizing a corporation, one-half the capital stock of which was to be delivered to the plaintiffs, the plaintiffs have been further damaged in the sum of $25,000, and pray judgment against the defendants in the sum of $102,185.30.

To this petition the defendants answered, first, by a general denial; second, that the contract which was signed by them had never been delivered, and that at the time it was signed it was well understood between the parties, although not expressed in the contract, that it was not to take effect and be a binding contract upon them until seven other persons, in addition to the three who signed the contract, who were to be men of sufficient financial ability to contribute their share of the money, had signed it, and that each of the ten persons signing should obligate himself and become liable under the contract only to the extent of $5,000; that ten persons did not subscribe their names to the contract, but only the three defendants, and for that reason the contract was never delivered to the plaintiffs, and was not binding upon the defendants. For a third defense it was alleged that the defendants did not sign the contract described and set out in the plaintiffs' third amended petition; that before the contract was executed the defend

ants and several other persons agreed with the plaintiffs upon the terms and conditions which were to be embodied in a contract to be prepared by Mr. Reinholdt, assistant cashier of the National Bank of Commerce, and to be approved by his attorney; that he prepared such a contract and delivered it to the plaintiffs, with a note addressed to Mr. Eisleben, and handed it to the plaintiffs to be presented to the defendants for signature; that the plaintiffs fraudulently switched the contract prepared by Mr. Reinholdt, and substituted another contract which they had prepared, and stated to the defendants that that was the contract Mr. Reinholdt had prepared, and by reason of these fraudulent misrepresentations they were induced to sign the contract upon which this action is based. They further set up as a fourth defense that the plaintiffs had been guilty of misrepresentation as to the character of the land; that they represented that the mineral rights were worth millions; that the defendants had no knowledge of coal or mineral rights, and relied entirely upon the representations made by the plaintiffs, and in reliance thereon entered into the contract; that after the contract was signed they found the representations were fraudulent, the land was not valuable as coal land, and for that reason the contract was fraudulently obtained from them. For a fifth defense they set up the statute of frauds of the state of Arkansas, and insist that the description of the lands is not sufficient to support an action for breach of the

contract.

The reply was a general denial. A trial was had in January, 1909, which resulted in a verdict and judgment in favor of the plaintiffs in the sum of $79,921.48. The contract upon which this action is based is in the following words:

"Memorandum of agreement made and entered into in duplicate at St. Louis, Missouri, this 14th day of May, 1907, by and between William Brooks and John H. Ganner, both of Russellville, Arkansas, parties of the first part, and L. Eisleben, H. C. Reiner, W. A. Miller, all of St. Louis, Missouri, parties of the second part, witnesseth: That the parties of the first part are the owners of and holders of options on the mineral rights, and are in process of acquiring under purchase, options, and leases other mineral rights in all, or as much thereof as can be had, of what is known as the 'Ouita coal basin,' in Pope and Yell counties, in the state of Arkansas, as shown by Branner's Map of the Arkansas Geological Coal Survey, which basin approximates 10,000 acres, more or less. Money is needed for the immediate prospecting of and the purchasing of said mineral rights from said first parties, and the parties of the second part agree to furnish such funds.

"The parties of the first part agree to convey by proper deeds and transfers to L. Eisleben, of St. Louis, Missouri, as trustee, or his successor in person or corporation, all of said mineral rights are now owned by them or whether they acquire an option thereon, or whether they acquire them by purchase, options, or leases at any time in the future. The said parties of the second part agree to furnish for immediate use a drilling fund enough to sufficiently drill said basin, otherwise to accept same without drilling, and as said property is drilled to accept for said trustee, or his successor, the mineral rights under any and all lands in said basin, which are now and in the future may be owned, purchased, optioned, or leased by said first parties, which are shown by ordinary methods of drilling to contain a continuation of the Ouita strata or vein of coal, paying to said first parties fifteen dollars ($15.00) cash per acre for the same, upon conveyance to said trustee or successor as above.

"Upon completion of said drilling and purchasing, or before if deemed advisable, the parties hereto agree to organize a corporation for the division of and

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