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alone an issue has been made." Omitting details, and eliminating the declaratory portions of the decree, it appears that its remedial part conforms precisely to the conclusion above referred to. That part may be restated thus:

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* Each and all of the said 18 leases or agreements hereinbefore described be, and the same hereby are, canceled, so far as the same purport in any way to affect the coal upon the said premises, or the right to enter the said premises and mine the coal upon the said premises, or in any other way affect the title to the coal upon the said premises; and that upon delivery of a copy of this decree, duly certified by the Clerk of the United States Circuit Court, Western District of Pennsylvania, to the recorder of deeds of said county of Somerset, he, upon payment of the proper fees, enter the same or a minute thereof upon the margin of the record of each of said agreements or leases, and that thereafter it be filed among the records of his office."

Of the existence of the jurisdiction which was invoked, and of the propriety of its exercise under the circumstances stated by the court, there can be no doubt; and therefore the correctness of the decree must depend solely upon the answer which should be made to the question: Did the instruments of writing held by the defendants below vest in them a valid and paramount title to the coal in question, as against the plaintiff in possession under title through later conveyances? In deciding this question we need not discuss all of the many points and authorities to which counsel have invited our attention, for, as we view it, it may be briefly determined by simply applying the plain terms of the instruments themselves to the conclusively established facts.

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Let it be conceded, as the court below held, that "the so-called leases to the defendant Brown constituted a sale and conveyance of the coal * * * in place." Yet it does not follow that he was entitled to have it remain in place indefinitely, notwithstanding his undertaking to pay for it from time to time, "as mined or otherwise reduced to possession." The fact is that he never mined at all, nor made any payment whatever under his agreement to pay "for every ton of coal" "removed and taken from the premises." He could not abandon the possession, for he never had it, and his grantors could not have re-entered without first withdrawing, and this it was not incumbent upon them to do under any possible view of the provisions respecting mining and railroad construction. The party would not be required to turn out and re-enter. The law does not require the performance of vain things." Clark v. Trindle et al., 52 Pa. 492496; Hamilton v. Elliott, 5 Serg. & R. 375; Innis v. Templeton, 95 Pa. 262, 40 Am. Rep. 643.

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This case differs materially from that of Plummer v. Hillside Co., 160 Pa. 483-494, 28 Atl. 853, where "the consideration of the grant was not the development of the mineral value of the land, but the price fixed by the agreement and actually paid to the lessor in money.” Brown, by the very nature of his contract, was bound by obligations to be fulfilled, as well as clothed with rights to be exercised; and "while the question [of abandonment] is one of intention mainly, its decision does not depend upon an intention to abandon or retain the

mineral right alone, divorced from the obligations which adhere to it under the contract, but the intention to abandon the contemplated enterprise." Paine v. Griffiths, 86 Fed. 455, 30 C. C. A. 182; Elk Fork Co. v. Jennings (C. C.) 84 Fed. 839. That the parties to these instruments contemplated the prosecution of an enterprise, and not an absolute sale of coal in place, their whole tenor makes perfectly plain; and that the lessee did not really intend to carry on that enterprise the proofs abundantly show.

The decree of the Circuit Court is affirmed.

NOTE.

"This indenture, made this 3d day of January, one thousand eight hundred and seventy-nine, by and between Abraham Weaver, of the county of Somerset and state of Pennsylvania, of the first part, and J. Willcox Brown, of the city of Baltimore and state of Maryland, of the second and other part, witnesseth: That the said party of the first part, in consideration of the sum of five dollars, to them in hand paid by the said party of the second part (the receipt whereof is hereby acknowledged), have granted, bargained, sold, aliened, enfeoffed, and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, and confirm, unto the said party of the second part, his heirs, executors, administrators, and assigns, all the iron ore, coal, cement, and fire clay and all other minerals of every kind, including stone or earth as may be required for mining operations in, upon, and under all that certain tract of land situated in Paint township, county of Somerset, and state aforesaid, and containing one hundred and seventeen acres, more or less, and described as follows: Adjoining land with T. Hays, D. Shaffer, J. Nerenberger, and others-(all minerals are to be drifted) with the appurtenances thereto appertaining, together with the full and exclusive right, liberty, and privilege of mining, taking, and carrying away said iron ore and other materials, as heretofore more fully recited, with such control of, rights in, and privilege of using said land and water as may be necessary in conducting mining operations in a full and convenient manner. To have and to hold all the said iron ore and other materials, as is more fully recited heretofore, and all the rights and easements aforesaid in, upon, through, and under the said tract of land, and the hereditaments and premises hereby granted or mentioned, and intended so to be, unto the said party of the second part, his heirs, executors, administrators, and assigns, to and for his and their only proper use and behoof, for the period of ninety-nine years from the date hereof. The said party of the first part further covenants, for his heirs, executors, administrators, and assigns, that he will, upon the proper demand of the party of the second part, his heirs, executors, administrators, and assigns, and at the expiration of the term herein provided for, and upon tender by the said party of the second part, his heirs, executors, administrators, and assigns, of dollars, execute another lease. If the railroad be not commenced within five years from this date, then this contract to be null and void.

"In further consideration whereof, the said party of the second part, his heirs, executors, administrators, and assigns, promises and agrees with the said party of the first part, his executors, administrators, and assigns, that he will, at the expiration of every three months, whenever any ore or other materials, as hereinbefore more particularly recited, is mined, quarried, or otherwise reduced to possession by the said party of the second part, his heirs, executors, administrators, and assigns, and removed from the premises, render to the said party of the first part, his heirs, executors, administrators, and assigns, a true and correct account of the materials removed and taken from the premises during the said preceding three months, and pay it to the said party of the first part, his heirs, executors, administrators, and assigns, as follows, that is to say. For every ton of iron ore of 2.240 pounds, ten cents. For every ton of coal of 2,240 pounds, five cents. For every ton of cement or fire clay of 2,240 pounds, five cents. For every ton of mineral ores, other than the above, of 2,240 pounds, five cents.

"In witness whereof, the parties hereto have set their hands and seals this 3d day of January, in the year one thousand eight hundred and seventynine. Abraham Weaver. [Seal.] "J. Wilcox Brown. [Seal.]

"State of Pennsylvania, Somerset County—ss.:

"Before me, a justice of the peace in and for the said county and state, personally came Abraham Weaver, the grantor, and acknowledged the foregoing instrument of writing to be his act and deed, and desired the same to be recorded as such, according to law.

"Witness my hand and seal, the 3d day of January, A. D. 1879.

"Stephen H. Griffith, Justice of the Peace. [Seal.]"

BURNS v. COOPER.

(Circuit Court of Appeals, Eighth Circuit. April 24, 1907.)

No. 2,430.

APPEAL-REVERSAL-FURTHER PROCEEDINGS-MANDATE.

A mortgage having been executed by a husband and wife, suit was brought to foreclose the same, and a decree rendered charging the life estate of the wife, as widow of a former husband, as well as her after-acquired title to the remainder. This decree was reversed, in so far as it affected such after-acquired title, and the cause was remanded, with directions to render a decree charging the wife's life estate. Held, that such judgment constituted the law of the case so far as the wife's life estate was concerned, and that a decree following such mandate was not objectionable for failure of the Circuit Court to declare the decree without prejudice to the future determination of the nature and extent of the wife's interest in the premises at the date of the mortgage.

Appeal from the Circuit Court of the United States for the District of Nebraska.

A. M. Post (John J. Sullivan, on the brief), for appellant. C. C. Flansburg (R. O. Williams, on the brief), for appellee. Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

VAN DEVANTER, Circuit Judge. The single question presented by this appeal is: Does the decree which it challenges conform to the mandate of this court issued when the case was here before? A full statement of the case is made in the opinion then rendered (Burns v. Cooper, 72 C. C. A. 25, 140 Fed. 273), and it will suffice to now briefly mention such matters as are relevant to the question just stated. The suit was one to foreclose a mortgage containing full covenants for title given by Martin Burns and Mary Burns, his wife, upon land in Nebraska to secure the payment of their joint promissory note. One of the defenses interposed by the wife was that she executed the note and mortgage solely for the benefit of her husband, and that, although she had a right or estate in the land at the date of the mortgage, she did not then have the full title, and, although she had subsequently acquired the full title, the mortgage did not affect the after-acquired title, by estoppel or otherwise, because under the laws of the state in force at the date of the mortgage a married woman could not bind her after-acquired property for the benefit of her husband. In the

bill it was alleged that her right or estate in the land at the date of the mortgage was "a life estate" of which she had become seised upon the death of her former husband, Daniel Foley, then the owner of the land; "said life estate being the right of homestead of the said Mary Foley (now Mary Burns) and her vested right of dower in and to said premises." In her separate answer it was alleged that, upon the death of Daniel Foley, "said property descended to his said children subject to the estate for life therein with which this respondent was seised as such widow, and said children were thereupon seised of said property by title in fee simple subject to the exception above stated," and, as further illustrating her attitude in respect of the na ture and extent of her right or estate in the premises at the date of the mortgage, she sought in her answer, as also at the final hearing, to obtain some advantage from prior litigation to which she was a party and in which it was found and adjudged "that the said Mary Burns, then Mary Foley, has a life estate in said land as the survivor of her said husband, Daniel Foley." In the opinion rendered by the Circuit Court at the final hearing (Cooper v. Burns, 133 Fed. [C. C.] 398), it was stated that among the questions presented for determination were these:

"Fourth. Did the fact that Mary Burns had a present vested life estate in said lands at the time she executed complainant's mortgage, and that said mortgage contained the before mentioned covenants as to title, extend the lien of complainant's mortgage to her after-acquired title to the remainder? Fifth. Mary Burns, at the time of the execution of complainant's mortgage, having an existing vested life estate in the mortgaged premises, is she now estopped by virtue of the covenants in the mortgage from asserting that such mortgage is not a lien upon the entire fee estate?"

These questions were answered in the affirmative, and, it appearing that an undivided one-half of the estate in remainder was acquired by her subject to an intervening mortgage, a decree was passed declaring the complainant's mortgage a first lien "on the life estate of respondent, Mary Burns, in said premises," and also a first lien on one undivided one-half, and a second lien on the other undivided one-half, of the estate in remainder. From that decree she appealed to this court, the gravamen of her complaint, as stated in her assignments of error, being that:

"The Circuit Court erred in finding and determining that the mortgage described in the bill of complaint is a lien upon the entire present estate of the respondent, Mary Burns, in the mortgaged property, and in failing to limit and restrict such lien to the interest and estate of said respondent in said property at the date of the execution of such mortgage."

There was no assignment that the Circuit Court erred in finding and determining that at the time of executing the mortgage she had a present vested life estate in the land, or that it erred in declaring the mortgage a lien upon such life estate.

This court, in the opinion rendered upon that appeal, stated at the outset that:

"Prior to the 5th day of July, 1877, one Daniel Foley was the owner of 150 acres of land in Platte county, Neb., occupied by himself, his wife, Mary Foley, and their minor children, Jeremiah and Mary E. Foley, as a homestead. On that day Daniel Foley died intestate, the property descending

under the laws of the state of Nebraska to the children, share and share alike, subject, however, to the right of homestead and the vested right of dower in the widow; these rights of homestead and dower, in practical effect, amounting to a life estate in Mary Foley."

Then after it was also stated that all had conceded that "the mortgage binds the life estate of Mary Burns," and after the questions presented by the appeal in respect of the effect of the mortgage upon afteracquired title were considered the decree of the Circuit Court was, for reasons there given, held erroneous and reversed, in so far as it fixed the lien of the mortgage upon a greater interest in the lands. than "the life estate of appellant, Mary Burns, as held by her at the date of the mortgage," and it was directed that a decree be entered in conformity with the opinion. The mandate subsequently issued precisely followed this ruling and direction.

Upon receiving the mandate the circuit court entered another decreedeclaring, as did the prior one, the complainant's mortgage a first lien "upon the life estate of Mary Burns in the premises," and directing a sale of such life estate to satisfy the mortgage debt, with costs, if not paid within 20 days, but this decree, differing from the prior one, gave the mortgage no effect beyond this. Mrs. Burns at that timeproposed, and the court declined to adopt, the following limitation upon the decree:

"Provided, however, that the decree is without prejudice to the rights of her, the said Mary Burns, and of her successors in interest in respect to the nature and extent of the life interest or estate possessed by her, the said Mary Burns, in the aforesaid real property at the date of the execution of the above-described mortgage and without prejudice to the rights of either or any party in respect to the nature or extent of the interest or estate in said real property which will vest in a purchaser under this decree, such questions and each thereof being hereby expressly reserved by the court."

She then appealed from this decree, and now takes the position that we did not upon the first appeal determine the nature or extent of the right or estate held by her in the premises at the date of the mortgage, that the Circuit Court should have proceeded to determine that matter or should have expressly reserved it, and that, in disregard of the terms of the mandate, the Circuit Court fixed the lien of the mortgage upon an estate for her life in the premises, when, in fact, she did not have such an estate at the date of the mortgage, but was only entitled, at her election, to possess and occupy the premises as a homestead for her life, which was a mere personal right and not vendible, or to take, as dower, a life estate in one third thereof.

What has been said indicates quite strongly that, prior to the original decree, the appellant did not make any such claim as is now put forth, and that she did not upon her first appeal question the Circuit Court's decision that she had a present vested life estate in the premises at the date of the mortgage; but we pass to the question first above stated: Does the second decree conform to the mandate of this court issued when the case was here before? We think it does. As has been shown, the appellant was treated in our former opinion as having at the date of the mortgage a right of homestead and a vested right of dower in the land, the two, in practical effect, amounting to a life estate, and it was distinctly stated that it was conceded by all

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