the above-mentioned instruction as to intent presumed by law was erroneous and confusing upon that issue, and not cured (as counsel for the government contends) by the other instructions referred to. The intent may rightly be inferred from the circumstances in evidence; but it is an inference of fact-not a presumption of law. The judgment of the District Court is reversed, therefore, and the cause remanded, with direction to grant a new trial.

On Rehearing.

PER CURIAM. The petition for rehearing is denied. We do not wish, however, that there should be any misunderstanding respecting our holding on the instruction referred to in subdivision 5 of the opinion. Standing by itself, as an abstract proposition of law, the instruction is not erroneous. The error consists in applying it to a case wherein, apart from the intent, the act is colorless; color being thereby imparted, not to the intent by the color of the act, as the law implies, but to the act itself by the color borrowed for the intent. In cases like this where the act itself is, apart from the in-. tent, colorless, the color of the intent must be proven as any other element of criminality is proven. The instruction as given (bearing in mind the case to which it was applied), though correct as an abstract proposition of law, tended to confuse the jury upon what, in this case, was the burden on the government, and thereby, in our judgment, prejudiced the plaintiff in error.

EADIE et al. v. CHAMBERS.f

(Circuit Court of Appeals, Ninth Circuit. July 6, 1909.)

No. 1,595.

1. DEEDS (8 47*)—REQUISITES AND VALIDITY—ATTESTATION.

The requirement of Civ. Code Alaska, § 82, that deeds of lands or any interest in lands executed within the district shall be executed in the presence of two witnesses, who shall subscribe the same as such, does not make such attestation necessary to the validity of the deed as between the parties, but is a formality necessary to entitle the deed to record.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. § 104; Dec. Dig. § 47.*]

2. ALTERATION OF INSTRUMENTS (§ 12*)—Deeds—AltERATION BY CONSENT OF PARTIES.

A deed is not rendered invalid by an alteration made by consent of the parties reducing the interest conveyed from three-fourths to one-half of the property.

[Ed. Note.-For other cases, see Alteration of Instruments, Cent. Dig. 89; Dec. Dig. § 12.*]

8. MINES AND MINERALS (§ 56*)-NATURE OF MINING LEASE-ALASKA STATUTE -"REAL Property"—"CONVEYANCE."

Under Civ. Code Alaska, § 181, which defines "real property" as including "all lands, tenements and hereditaments and rights thereto, and all interests therein, whether in fee simple or for the life of another," a lease of a mining claim for years conveys a chattel interest only and not an interest in the land, and is not a "conveyance," within the meaning of section 98, the recording of which will protect the lessee against a prior For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Rehearing denied October 4, 1909.

unrecorded deed; nor is such lessee an innocent purchaser in good faith for a valuable consideration within such section, where he is to work the same and pay the lessor a royalty.

[Ed. Note. For other cases, see Mines and Minerals, Cent. Dig. § 166; Dec. Dig. 56.*

For other definitions, see Words and Phrases, vol. 2, pp. 1575-1584; vol. 8, p. 7619; vol. 7, pp. 5939-5951; vol. 8, pp. 7778, 7779.]

Ross, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Second Division of the District of Alaska.

The defendant in error brought ejectment against the plaintiffs in error to recover the possession of a one-half interest in the Bon Voyage mining location, in the Cape Nome recording district in Alaska, and to recover damages for the wrongful detention thereof. To prove his title the defendant in error introduced in evidence a deed to him from Whittren, the original locator of the claim. The deed was dated April 21, 1902, and upon its face purported to convey an undivided one-half interest in the Bon Voyage and certain other mining claims. There was but one witness to its execution, and he was the notary public before whom it was acknowledged. An indorsement on the deed indicated that it had been recorded in the records of deeds of the Nome district about four years after its execution. It was conceded that the deed on its face appeared to have been altered in a material part, to wit, in the interest conveyed. The defendant in error testified that on May 23 or 24, 1906, Whittren, the grantor, had, with his consent and in his presence, changed the deed from a conveyance of a three-fourths interest to a conveyance of a one-half interest. Whittren, on the other hand, testified that the alteration was not made at the time so stated by the defendant in error, but at a date prior thereto, and that it was made by the defendant in error, who confessed to him that he had altered the description from a onefourth interest to a one-half interest. The plaintiffs in error objected to the introduction of the deed in its altered condition; but the objection was overruled.

It was proven that on September 24, 1905, the plaintiff in error Whittren made to the plaintiff in error Eadie a deed of an undivided one-half interest in the claim, and that the deed was properly witnessed, acknowledged, and recorded a year prior to the recording of the deed to the defendant in error. The consideration for the deed to Eadie was the promise of the grantee to do the assessment work on the claim for the year 1904. It was further shown: That on June 11, 1906, Whittren and Eadie made a lease to the plaintiff in error Waskey of the westerly 220 feet of the claim for a term of two years; that the lease had been filed for record on August 22, 1906; that Waskey entered into the possession under said lease and began to prospect and mine the leased property; that thereafter on June 20, 1906, Whittren leased to Eadie and Waskey the remainder of the claim for a period of two years; that the lease thereof was recorded on August 30, 1906; that Waskey and Eadie entered into possession under said last-named lease, and began to prospect the leased property for gold, and were in the active prosecution of development and operation when the action of ejectment was commenced. The case was submitted to a jury, and a verdict was returned in favor of the defendant in error, finding that he was the owner of an undivided one-half interest in the Bon Voyage claim, and entitled to damages against the plaintiffs in error in the sum of $20,483.

Ira D. Orton, Albert Fink, F. E. Fuller, O. D. Cochran, Campbell, Metson, Drew, Oatman & Mackenzie, and E. H. Ryan, for plaintiffs in error.

C. D. Murane, William A. Gillmore, and Albert H. Elliot, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

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

GILBERT, Circuit Judge (after stating the facts as above). The principal question in the case is whether the deed from Whittren to the defendant in error, attested as it was by but one witness, was sufficient to convey the title as between the parties thereto. At common law a deed is valid between parties and their privies, if signed, sealed, and delivered, and attestation is no part of its execution. 2 Blackstone, Com. 307; Dole v. Thurlow, 12 Metc. (Mass.) 164; Hepburn v. Dubois, 12 Pet. 345, 9 L. R. A. 1111. In adopting systems of registration of conveyances, about one-half of the states have enacted statutes requiring that the execution of deeds be attested by witnesses, who shall subscribe their names thereto as such. It is the decided weight of authority that the purpose of such a statute is to entitle the conveyance to be recorded, and that, while compliance therewith is. essential to registration, a failure to comply does not affect the common-law rule that a deed signed, sealed, and delivered is good as between the parties. The statute of Alaska, which was adopted from the statutes of Oregon, is not essentially different from that which is in force in the states hereinafter referred to. Section 73, c. 11, of the Civil Code of Alaska, provides:

"A conveyance of lands or of any estate or interest therein may be made by deed signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved and recorded as directed in this chapter, without any other act or ceremony whatever."

Section 82 provides:

"Deeds executed within the district, of lands or any interest in lands therein, shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such."

Section 113 is a curative statute, also adopted from the statutes of Oregon. It provides:

"All deeds to real property heretofore executed in the district which shall have been signed by the grantors in due form, shall be sufficient in law to convey the legal title to the premises therein described from the grantors to the grantees, without any other execution or acknowledgment whatever, and such deeds so executed shall be received in evidence in all courts in the district, and be evidence of the title to the lands therein described against the grantors, their heirs and assigns."

If it be argued from the language of this curative statute that it was the understanding of the lawmakers that an unattested deed was insufficient to pass title between the parties without the aid of a curative statute, the answer is that the defects intended to be cured by the statute are other and more vital than the mere omission of attesting witnesses. It was the intention to make valid as between the parties unsealed deeds, deeds which lacked one of the essential requisites of a common-law conveyance even as between the parties.

In adopting the Oregon statute for Alaska, there was adopted with it the construction placed upon it in Moore v. Thomas, 1 Or. 201, in which the court held that an unacknowledged, unrecorded mortgage was good between the parties thereto, for the principle involved is the same whether a deed lack acknowledgment or subscribing witnesses. The court, by Williams, Chief Justice, said:

"When said mortgages were signed, sealed, and delivered by Thomas to Moore, they were certainly good at common law, and there is no reason to suppose that the design of the registry act was to prevent the operation of a deed so made or to protect the parties thereto as against each other; but the manifest and exclusive object of such act was to protect third persons from fraud or injury by means of prior secret conveyances."

In Goodenough v. Warren, 5 Sawy. 494, Fed. Cas. No. 5,534, Judge Deady, after referring to the fact that at common law a deed is valid between the parties though not witnessed, acknowledged, or recorded, inquired:

"Does the statute of Oregon change this rule? Section 1 of the act relating to conveyances (Laws Or. 1854-55, p. 519) declares that 'conveyances of land or of any estate or interest therein may be made by deed signed and sealed,' and although in the same section and sentence it is further provided that such deeds may be 'acknowledged or proved and recorded' as therein directed, yet it is not declared, and evidently was not intended to make either such acknowledgment, proof or record any part of the execution of such instrument. But section 10 of the act aforesaid does declare that 'deeds executed within this state of lands or any interest in lands therein, shall be executed in the presence of two witnesses who shall subscribe their names to the same as such,' and, while this provision may not make such attestation an essential part of the execution of the deed, yet it is probable that, where the execution is controverted, it cannot be shown if not so attested. It is not a part of the execution, but the means by which it must be proven if necessary."

In Brewster on Conveyances, § 251, it is said:

"Generally speaking, in those states where statutes provide that conveyances shall be attested by witnesses, the requirement is not essential to the validity of the deed as between the parties, but, like the requirement as to acknowledgment, is a formality necessary under the statute to entitle the Ideed to be recorded."

In Wisconsin in Leinenkugel v. Kehl, 73 Wis. 238, 40 N. W. 683, the court reviewed its prior decisions, holding that attestation and acknowledgment of deeds required by the statute were but formalities. to entitle the deed to be recorded, so as to operate as notice to subsequent purchasers, but were not essential to the transfer of the title as between the parties. That doctrine, the court said, was "in accord with the great weight of authority upon this subject."

In Pearson v. Davis, 41 Neb. 608, 59 N. W. 885, the Supreme Court of Nebraska, following a line of its prior decisions, held that a deed to real estate executed, acknowledged, and delivered by the grantor ist valid between the parties to it, although the same is not witnessed.

In Howard v. Russell, 104 Ga. 230, 30 S. E. 802, the court said: "While the Code of this state requires such paper to be attested by two witnesses, it does not declare that a deed attested by but one witness is void. The main object of the attestation by two witnesses is to comply with the registration laws of the state."

Of similar import are McLane v. Canales (Tex. Civ. App.) 25 S. W. 29; Robsion v. Gray et al. (Ky.) 97 S. W. 347; Fitzhugh v. Croghan, 2 J. J. Marsh. (Ky.) 429, 19 Am. Dec. 139; Stone v. Ashley, 13 N. H. 38; Hastings v. Cutler, 24 N. H. 481.

As opposed to this construction we are referred to decisions in Connecticuit, Ohio, Alabama, Michigan, and Minnesota. The Michigan

case which is cited is Crane v. Reader, 21 Mich. 24, 4 Am. Rep. 430. In that case, in determining the validity under the territorial law of 1820 of an unattested deed made in 1823, the court held that the ordinance of 1787 requiring the attestation of two witnesses, which was in substance re-enacted in 1820, was intended to supplant the common law of the territory of Michigan, and that since the law in force in. that territory prior to the ordinance was the French law, under which deeds were required to be attested by witnesses, a deed without witnesses was void; but in Dougherty v. Randall, 3 Mich. 581, the court held that the statute of Michigan of 1840 requiring two subscribing witnesses to a deed of real estate was a provision for registration only, and that by the common law title passes by an unwitnessed deed. Such has been the ruling of that court ever since. Price v. Haynes, 37 Mich. 487; Baker v. Clark, 52 Mich. 22, 17 N. E. 225; Fulton v. Priddy, 123 Mich. 298, 82 N. W. 65, 81 Am. St. Rep. 201; Carpenter v. Carpenter, 126 Mich. 217, 85 N. W. 576. The Minnesota case which is cited is Meighen v. Strong, 6 Minn. 177 (Gil. 111), 80 Am. Dec. 441, in which it was held that a statute which requires that a conveyance shall be executed in the presence of witnesses, who shall subscribe their names thereto as such, is imperative and must be complied with to give the instrument any validity as a conveyance; but under the statute of Minnesota as amended in 1868 (Laws 1868, p. 100, c. 61, § 1) which provided:

"Deeds of land or any interest in lands within this state shall be executed in the presence of two witnesses who shall subscribe their names to the same as such"

-the court held in Morton v. Leland, 27 Minn. 35, 6 N. W. 378, that, to pass title from the grantor to the grantee, nothing more was necessary than the execution and delivery of the deed, and that neither witnesses nor acknowledgment were requisite. The same was held in Johnson v. Sandhoff, 30 Minn. 197, 14 N. W. 889, and in Conlan v. Grace, 36 Minn. 276, 30 N. W. 880.

In the light of the authorities, and especially the construction given by the Oregon courts to the Oregon statute before its adoption for Alaska, we find no error in the ruling of the trial court that the deed was sufficient to convey title from Whittren to the defendant in error. Error is assigned to the instruction of the court to the jury on the subject of alteration of the deed. The court, in substance, instructed the jury that if they found that the deed was altered or changed by the consent of the parties or by the grantor Whittren, or that the change was made with Whittren's consent, and that the alteration was made by reducing the amount of property conveyed, the deed was a good and valid conveyance, if redelivered, of an undivided one-half interest in the property. That the court in so instructing the jury correctly stated the law of the case is too clear to require discussion. If a three-fourths interest was vested in the grantee by the deed as originally made, the alteration could at the utmost operate no further than to divest him of an undivided one-fourth interest.

Error is assigned to the instruction to the jury concerning the rights of the lessees Waskey and Eadie under their leases from Whittren as against the title of the defendant in error. The court charged the