would have precluded the appellee from suing his employer; not because the payments necessarily fully satisfied his cause of action, but because, under the Texas law, he was not permitted to pursue both remedies. The Texas law did not, however, preclude him from pursuing a stranger, who was jointly liable for his injury. In order to bar his action against a stranger, it would be necessary to show that he had been fully satisfied by the payment made to him for the cause of action for his injuries. This could only be done by showing an agreement on his part to accept them in full satisfaction, or by convincing the court that they were adequate in amount to that end. We think the utmost effect to be given the payments made to him and the release signed by him, either under the Texas Workmen's Compensation Act or at common law, would be to estop him from suing his employer and as a pro tanto satisfaction of his cause of action against a stranger. The evidence as to the amount received by appellee was before the District Judge, and we must assume that he gave it its legal effect in fixing the amount of the decree rendered. The decree of the District Court is affirmed. (248 Fed. 483) GLENWOOD IRR. CO. v. VALLERY. VALLERY v. GLENWOOD IRR. CO. (Circuit Court of Appeals, Eighth Circuit. January 26, 1918.) Nos. 4833, 4834. 1. JURY 37-REVIEW-FINDINGS BY JURY-AMOUNT OF RECOVERY. Where the amount plaintiff was entitled to recover was uncontroverted, and the court charged the jury to find for that amount in event they found for plaintiff, a reversal of judgment based on a verdict for a less amount is not a violation of the rule that a fact tried by jury cannot be re-examined in the federal courts, otherwise than according to the rules of the common law, because the amount of the recovery was not in issue or submitted. 2. APPEAL AND ERROR 973(5)—REVIEW-DISCRETION-REFUSAL OF NEW TRIAL. Where the amount of plaintiff's recovery was uncontroverted, but the jury, in violation of the court's charge, found for a less amount than that established by the evidence, the reversal of a judgment based on such verdict was not a violation of the rule that a refusal of the trial court to disturb the verdict on motion for new trial is a matter of discretion, for it was the duty of the trial court as a matter of law to decline to enter judgment upon such verdict. 3. APPEAL AND ERROR 979(5)—-REVIEW-DISCRETION OF TRIAL COURT. Where the trial court, though the jury, in violation of the instructions, found for an amount less than that which the uncontroverted evidence showed plaintiff was entitled to recover, if at all, the refusal of a motion for a new trial was such an abuse of discretion that a reversal of the judgment on writ of error was proper. 4. COURTS 295-FEDERAL COURTS-JURISDICTION. The federal court may entertain a suit by a receiver appointed therein against a resident of the state of which the receiver was a resident. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge. Action by George W. Vallery, as receiver of the Colorado Midland Railway Company, against the Glenwood Irrigation Company. There was a judgment for plaintiff for partial relief, and both parties bring error. Judgment reversed on plaintiff's writ, with directions to grant new trial, and defendant's writ of error dismissed. E. L. Clover, of Denver, Colo., for plaintiff in error in No. 4833. Henry T. Rogers, Daniel B. Ellis, Lewis B. Johnson, Pierpont Fuller, and George A. H. Fraser, all of Denver, Colo., for defendant in error in No. 4833 and plaintiff in error in No. 4834. Before CARLAND, Circuit Judge, and AMIDON and MUNGER, District Judges. AMIDON, District Judge. Vallery, as receiver of the Colorado Midland Railway Company, brought an action, as plaintiff, against the Glenwood Irrigation Company, as defendant, to recover damages for a trestle destroyed by fire alleged to have been set by defendant. The value of the bridge and the expense caused by its destruction was fixed by the evidence at $1,973.89. As to this amount there was no controversy. The trial judge in his charge told the jury in substance that, if they found in favor of the plaintiff, he was entitled to recover that amount. It was developed in the evidence that the railroad company carried insurance upon its trestle, for which it had collected $1,200; but the judge in his charge told the jury expressly that no deduction could be made from their verdict on account of the insurance. The jury, in disregard of the charge, returned a verdict in favor of the plaintiff for $760.03. It is reasonably clear that they arrived at this amount by deducting the $1,200 from the amount of plaintiff's damages. Both parties immediately excepted to the verdict, and both parties have sued out writs of error to review the judgment entered upon it. Plaintiff asks that it be set aside because, as a mathematical demonstration, it was contrary to law as declared to the jury by the court; the defendant, for errors of law occurring at the trial. [1-3] No issue was submitted to the jury as to the amount of plaintiff's recovery. They were confined by the charge to determining defendant's liability for the fire. It is manifest, therefore, that the amount of the damages was not "a fact tried by the jury," within the meaning of the Seventh Amendment to the federal Constitution. The verdict is perverse and directly violative of the charge of the court. When that appears as a matter of mathematical calculation, the verdict cannot stand. It is error of law to enter judgment upon it, which an appellate court may properly review. The verdict stands in this case as it would in a suit on a promissory note for $2,000, upon which no payment had been made, and the jury returned a verdict for $1,000. The judgment in such case for $1,000 would be reversible as for an error of law. Pierce v. Schaden, 62 Cal. 283. Such a reversal does not violate the rule that a fact tried by a jury cannot be re-examined in the federal courts otherwise than according to the rules of the common law, because the amount of damages was not in issue and was not submitted to the jury for trial. Nor does such a decision violate the rule that a refusal of the trial court to disturb the verdict on motion for new trial is matter of discretion, because the duty not to enter judgment upon such a verdict is one of law, and not of discretion. Or, if there was discretion, it was so abused as to support correction on writ of error. Pugh v. Bluff City Excursion Co., 177 Fed. 399, 401, 101 C. C. A. 403; James v. Evans, 149 Fed. 136, 141, 80 C. C. A. 240; Higgins v. U. Š., 185 Fed. 710, 717, 108 C. C. A. 48; Thompkins v. M., K. & T. Ry. Co., 211 Fed. 391, 397, 128 C. C. A. 1, 52 L. R. A. (N. S.) 791. [4] Defendant attacked the jurisdiction of the court because both plaintiff and defendant were citizens of Colorado. That objection, however, is not tenable, because the plaintiff was a receiver appointed by the federal court. On the question of defendant's liability there was sufficient evidence to justify the submission of the cause to the jury. The judgment is reversed on plaintiff's writ of error, with direction to grant a new trial. In view of the conclusion reached, defendant's writ of error is dismissed. (248 Fed. 485) UNITED STATES v. ROUTT COUNTY COAL CO. et al. No. 4852. 1. CORPORATIONS 428(7)-KNOWLEDGE OF VICE PRESIDENT-IMPUTATION. Where the vice president of the purchasing company had knowledge of and had participated in the fraudulent procurement of a patent to land, his knowledge is chargeable to the purchasing corporation, so that, in a suit to cancel the same, the defense of bona fide purchaser is unavailable. 2. PUBLIC LANDS 120-BONA FIDE PURCHASERS-DEFENSES. In a suit to cancel a patent to coal lands on the ground that it was procured by fraud, the defense of bona fide purchaser is available to a lessee for a term of years, who had prior to institution of the suit paid practically the whole of the consideration. 3. VENDOR AND PURCHASER 231(3)—BONA FIDE PURCHASERS-NOTICE-REC ORD. The record of title in the office of the register of deeds does not import notice of all suspicious or speculative inferences which might be drawn from the muniments of title as a result of a mathematical comparison of the dates of various different instruments. 4. PUBLIC LANDS 138-BONA FIDE PURCHASERS-CONSTRUCTIVE NOTICE. That the receiver's receipt for public land bore a date subsequent to the date of the conveyance by the entryman is not a fact which would charge subsequent purchasers with notice of the fraud, for delays in issuing receipts in the land office are frequent and the transaction might well have been innocent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Appeal from the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge. Bill by the United States against the Routt County Coal Company, the Rugby Fuel Company, and others. From a decree dismissing the bill as to the named defendants, complainant appeals. Modified, so as to declare void the title of the Routt County Coal Company, and otherwise affirmed. Eugene B. Lacy, Asst. U. S. Atty., of Los Angeles, Cal. (Harry B. Tedrow, U. S. Atty., of Denver, Colo., on the brief), for the United States. Frank McDonough, Sr., of Denver, Colo. (Frank McDonough, Jr., of Denver, Colo., on the brief), for appellees. Before CARLAND, Circuit Judge, and AMIDON and MUNGER, District Judges. AMIDON, District Judge. [1, 2] This is a suit brought by the United States to cancel a patent for coal land on the ground of fraud. The lands were entered by a man by the name of Miller, at the instance of Frederick A. Craise, the president of the Empire Oil, Coal & Copper Company, and for the benefit of that company. Craise acted as his attorney in the land office, paying all the expense and the purchase price of the land. Miller simply lent the use of his name, and conveyed the property to the Empire Oil, Coal & Copper Company at the time the receiver's receipt was issued. The court below properly found that the entry and patent were fraudulent as against Craise and the Empire Company. The entry was made in 1901, and patent was obtained in 1906. In 1904 the Empire Company conveyed the land to the Routt County Coal Company. At that time Craise was vice president of the latter company. His knowledge of the fraud was therefore imparted to it. It results that, while the Routt County Coal Company paid a valuable consideration, it took with notice, and cannot hold the title. That company executed a lease of the property now held by the Rugby Fuel Company. The lease runs for 11 years, with a right of renewal for an additional 11 years. This lease was taken for a valuable consideration, the greater part of which had been paid before this suit was brought, and without notice. of any fraudulent practices. The trial court dismissed the bill as to Routt County Coal Company and the Rugby Fuel Company, upon the ground that they were both bona fide purchasers. The decree was right as to the latter company, but wrong as to the former, for the reasons above stated. [3, 4] An attempt is made to impart constructive notice of the fraudulent character of Miller's entry to all purchasers from these facts: Miller executed his deed for the property to the Empire Company August 4, 1902. It was filed August 18th of the same year. The receiver's receipt bears date August 13th, nine days subsequent to Miller's deed, and was filed August 18th, the same day as the deed. Counsel for the government argues that, because Miller's deed bears date nine days earlier than the receiver's receipt, this is such a suspicious circumstance as to put any subsequent purchaser of the title upon inquiry and charges him with notice of the fraud upon the ground that if the inquiry had been made the fraud would have been discovered. That is not the law. The record of title in the office of the register of deeds gives constructive notice to subsequent purchasers of all liens, titles, and interests created by the instruments previously filed. The registry, however, does not impart notice of all the suspicious or speculative inferences which an inspector, familiar with a fraudulent transaction, might draw as the result of a mathematical comparison of the dates of different instruments. We say this for two reasons: (1) The fact that the receiver's receipt bears date subsequent to Miller's deed is as susceptible of an innocent explanation as of a fraudulent one. Delays in issuing receipts in the land office are frequent. The proof may be accepted, and the officers state that it is entirely satisfactory, and that the receipts will be issued in due course of business. Such delay may also be due to some merely formal matter, which the entryman is required to supply before the receipt will be issued. In either case the execution of the deed prior to the issuance of the receipt would be an innocent transaction. (2) As is already stated, the registry was not notice of inferences which could only be drawn by mathematical calculation from the dates. Such a circumstance would not be sufficient to put a purchaser upon inquiry within any sound rule of law. United States v. Detroit Timber & Lumber Co., 131 Fed. 668, 67 C. C. A. 1; Shulthis v. McDougal, 170 Fed. 529–540, 95 C. C. A. 615; United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 26 Sup. Ct. 282, 50 L. Ed. 499; Tobey v. Kilburne, 222 Fed. 760-764, 138 C. C. A. 308. The decree of the trial court is modified, so as to declare null and void the title of the Routt County Coal Company, and otherwise is affirmed. (248 Fed. 487) AMERICAN FALLS MILLING CO. v. STANDARD BROKERAGE & DISTRIBUTING CO. (Circuit Court of Appeals, Eighth Circuit. January 26, 1918.) No. 4969. 1. EQUITY 41-JURISDICTION-RETENTION AFTER DENIAL OF INJUNCTION. Under Judicial Code (Act March 3, 1911, c. 231) § 267, 36 Stat. 1163 (Comp. St. 1916, § 1244), providing that suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law, a court of equity, after denial of an injunction, which was the only equitable relief sought, has no jurisdiction to proceed with the cause for the purpose of awarding damages to complainant, but the cause should be transferred to the law side of the court, pursuant to equity rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv). For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 160 C.C.A.-32 |