was the debt of the Ft. Jefferson Improvement Company. If Ben S. Dupoyster was bound for its payment at all, he was probably so bound only as surety or guarantor, though the nature of any obligation upon him to pay this debt of another nowhere appears outside of the mortgage, and, from this point of view, it may well be doubted, under section 482, Ky. St., first, whether J. C. Dupoyster had any authority to bind Ben S. Dupoyster for the debt at all without authority in writing from the latter; second, whether the deed of trust of August 20, 1887, authorized J. C. Dupoyster, as trustee, without the express consent of Ben S. Dupoyster, either to make Ben S. a guarantor of that debt, or to give a mortgage on the land of the latter to secure such a surety debt; and, third, whether the claim is not now barred either by time (seven years), under section 2551, Ky. St., or by laches, as a stale claim, under the principles announced in the cases of Hayward v. National Bank, 96 U. S. 617, 24 L. Ed. 855; Badger v. Badger, 2 Wall. 87, 17 L. Ed. 836; and in the numerous cases cited in Rose's Notes on them. This last result would not be avoided upon the facts stated in the bill of complaint as a reason for not sooner bringing this action, and, under the authorities, these results might be enforced in proper cases in equity, although there was no plea relying upon the statute of limitations, or where the state statutes did not apply. However, while suggesting the very pertinent possibilities arising upon these considerations, I do not put my judgment upon them. I prefer to put the decision of the case upon the grounds stated, viz., first, that as Ben S. Dupoyster's life estate expired, in 1891, there was nothing left for his mortgage to operate upon, even assuming that the debt had been validly guarantied and that the mortgage upon his interest in the land was authorized; and, second, that, as Jos. C. Dupoyster did not mortgage his individual interest in the land at all, the complainant had no enforceable claim against that interest. If these two reasons are well founded, the subject is exhausted, and further inquiry is unnecessary.

Exceptions.

Previous to the hearing, no formal exceptions to any of the testimony were filed, although certain vague objections were noted on the depositions while they were being taken. However, those objections in probably every instance were too general to be noticed, or to call for any judgment thereon. But under the order of submission it may be fair to say that some objections were made which should be disposed of:

(1) The court is of opinion that none of the exceptions made on behalf of the defendant should be sustained, and all of them are separately overruled. (2) The complainant objects to the reading as evidence of certain letters from him to the defendant Joseph C. Dupoyster, filed by the latter as a part of his deposition, and consecutively numbered from 1 to 15, inclusive. These letters seem to have no legitimate bearing upon any issue in the case, and the complainant's objections to their being read or considered as testimony are sustained.

(3) The only other exceptions insisted upon in the order of submission which are not too general and vague to be noticed are those which relate to the copy of certain parts of the record from the state court marked "Exhibit X" in J. C. Dupoyster's deposition, and marked "April 2, 1903, Wm. Henderson," in William Henderson's deposition. The evident object of this testimony is to show that the complainant voluntarily became a party to the suit in the state court, and thereafter made a motion therein for the appointment of a receiver. Doubtless the defendant attaches importance to these facts as justifying the conclusion that the complainant, being a party, is bound by the judgment in the state court, and by the construction put by that court upon the deed of 1859, but, whether this part of the record is read or not, there is enough of the record otherwise in evidence without objection, including the opinion of the Court of Appeals, to show all that is necessary for the purpose of deciding this cause. Besides, the deed of 1859 is copied in the record presented by the complainant, and, even in the absence of the opinion of the Court of Appeals, this court would construe the deed the same way. The objection that the copy covers only a part of the record is not tenable, because it is open to the defendant to put in the parts he thinks will prove what he wants to prove, and to the complainant to put in other parts if he thinks other parts of the

record will neutralize the effect of what the defendant has put in. This would especially be true where the object is limited within such narrow bounds as make it manifestly unnecessary to produce an entire record to prove a single fact which may be as well established by a part of it. The points arising on the exceptions were but little, if at all, argued, but it is assumed that the other objections to this Exhibit X are based upon the provisions of section 905, Rev. St. U. S. [U. S. Comp. St. 1901, p. 677]. The copy offered is certified by the clerk of the state court, and, if the copy were authenticated by the seal of the court, it is doubtful whether the objection that his official character and that his attestation was in due form of law are not certified by the judge of the state court would be maintainable. The contrary was expressly held by Mr. Justice McLean in Mewster v. Spalding, 6 McLean, 24, 17 Fed. Cas. 242 (No. 9,513), and by Judge Deady in Bennett v. Bennett, 1 Deady, 299, 3 Fed. Cas. 212 (No. 1,318). These rulings were based upon the ground that, inasmuch as the federal courts are presumed to know and to take notice of the laws of all the states, they must be understood as knowing that the clerk's attestation is or is not in due form of law, and that the clerk's official character, etc., should be regarded as established if his certificate is fortified or authenticated by the seal of the court for which he is the clerk. As the clerk did not, under the seal of his court, authenticate the exhibit referred to, the exception of the complainant to the reading of that part of the testimony is sustained. Such exceptions as this, however, should always be taken in advance of the trial, so as to afford an opportunity to correct the omission, and the court on this account has been in much doubt on this point, and, if the proposition was considered as vital, would even now afford an opportunity to supply the omission.

Counsel will prepare a judgment accordingly.

Bloomfield & Crice and F. H. Sullivan, for appellant.
Bagby & Martin, for appellee Dupoyster.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS, Circuit Judge. This was a bill filed May 8, 1902, by the complainant (appellant) against the defendants (appellees) to foreclose what was claimed to be a mortgage on a tract of land containing about 3,500 acres, known as the "Ft. Jefferson Tract," in Ballard county, Ky. The defendant the Ft. Jefferson Improvement Company, although served, did not appear to the bill. Joseph C. Dupoyster filed an answer. To this the complainant filed a general replication. The case was heard upon the pleadings and proof, and a decree rendered dismissing the bill. The complainant below has appealed.

The case turns upon a construction of three conveyances. The complainant relies upon the following instrument, executed and delivered to him, as constituting a mortgage:

"This agreement made and entered into this 17th day of September, 1890, by and between Jos. C. Dupoyster, acting as trustee for Ben S. Dupoyster, both of Ballard County, Ky., party of the first part, and William S. Bryan, of St. Louis, Mo., party of the second part, witnesseth: That whereas the said party of the first part has sold to the Fort Jefferson Improvement Company, an incorporation, a certain tract of land known as the Fort Jefferson tract, situated in Ballard County, Ky., and supposed to contain thirty-five hundred acres, more or less, and whereas said party of the second part is interested in said tract to the value of five thousand dollars ($5,000.00) in cash paid to the said party of the first part, and whereas the said party of the second part has agreed to receive in lieu of the said five thousand dollars ($5,000) fifty thousand (50,000) shares of stock in the Fort Jefferson Improvement Company, and whereas, there are certain deferred payments to be made to the party of the first part by the said Fort Jefferson Improvement Company, now, therefore, if the said company or its legal representatives

should fail or refuse to meet and pay said deferred payments in the amounts and at the times agreed upon, then this agreement and instrument of writing shall have the force and effect of a lien against the lands and improvements embraced in the said Fort Jefferson tracts, for the purpose of securing to the said William S. Bryan, his heirs and assigns, the said five thousand dollars ($5,000) herein named."

Conceding that this instrument, although never acknowledged, was in equity a mortgage upon the tract, it is clear, upon a careful reading, that it was executed, not by Joseph C. Dupoyster acting for himself, but by Joseph C. Dupoyster acting solely as trustee for Ben S. Dupoyster. It so states. Its operation therefore was limited to the interest which Ben S. held in the Ft. Jefferson tract on September 17, 1890. What interest did he hold in it at that time?

Joseph C. Dupoyster was created trustee for his brother, Ben S., by the latter's deed of August 20, 1887, which conveyed the Ft. Jefferson tract and other lands to the former upon a trust defined as follows: "Said second party is to manage, sell and make deeds, rent, or lease any or all of the above lands according to his best judgment. And my just debts is to be paid out of the proceeds of the first sales, and if the second party should survive the first party, then the proceeds of such sales, rents, etc., to be paid to his second party's son, Joseph B. Dupoyster, after paying for a suitable monument at the tomb of said first party. The second party is to retain a liberal fee for his services in managing the above estate."

It is to be observed that this conveyance provides that, if Joseph C. Dupoyster should survive Ben S., then the proceeds of the sales, rents, etc., shall be paid to Joseph C.'s son, Joseph B., after paying for a suitable monument to Ben S. It purports, therefore, to pass to the trustee the control and disposition of the lands during the lifetime of Ben S., and seemingly recognizes Joseph C.'s son, Joseph B., as the owner of an interest in the lands after the death of Ben S.

The question which naturally suggests itself, in view of the peculiar phraseology of this conveyance, is, what interest did Ben S. have in the lands at the time he made it? And this brings us to a consideration of the terms of the deed of these lands of March 16, 1859, executed by Thomas Dupoyster, the father of Ben S. and Joseph C. Dupoyster, to Ben S. Dupoyster. This deed from Thomas Dupoyster, the party of the first part, to Ben S., the party of the second part, was upon the following express condition:

"It is expressly agreed and understood that said second party is to deed or will said lands to the bodily heirs of J. C. Dupoyster; in other words, the title and possession of said lands is only invested in said second party during his natural lifetime, then to said heirs of J. C. Dupoyster, and second party has the discretion of allotting said lands between said heirs as he may see proper, said second party."

"To have and to hold said lands during his natural lifetime and said heirs and their heirs and assigns together with all the appurtenances thereunto belonging forever with covenant of general warranty."

In an action brought by Joseph C. Dupoyster, in his own right and as administrator of Ben S., against the Ft. Jefferson Improvement Company, to recover the balance of the purchase price of the Ft. Jefferson. tract, the Supreme Court of Kentucky held that this deed was genuine. and that it vested in Ben S. only a life estate, with remainder to the children of Joseph C., which vested in the first-born child, and opened up to

let in the after-born children. L. R. A. 537.

21 Ky. Law Rep. 515, 51 S. W. 810, 48

Ben S. Dupoyster, therefore, at the time he made his brother trustee, and at the time his brother, as trustee, executed the alleged mortgage to the complainant, had and held only a life estate in the Ft. Jefferson tract. It was for this reason the circuit court of Ballard county, in the suit to which we have referred, set aside the sale of the Ft. Jefferson tract to the Ft. Jefferson Improvement Company, and rendered a judgment against Joseph C., individually and as administrator for Ben S., for $10,000; this being the amount of the payments made by the improvement company on the land. But the court declined to make this judgment a lien on the land. It thus appears that Ben S. Dupoyster never had more than a life estate in the Ft. Jefferson tract, and this estate terminated on March 5, 1891, on which day he died. From that time on there was no interest existing in this land upon which the mortgage could operate.

This is enough to dispose of the case. But it is contended that Joseph C. and Ben S. falsely represented that Ben S. owned the tract in fee simple and that Joseph C. was authorized to mortgage it. If this were established, it might warrant a recovery in an action based on fraud, but it would create no lien upon the land such as is sought to be asserted in this suit.

Again, it is submitted that since Joseph C. had four children, two of whom died unmarried and without issue, he holds, as heir of these deceased children, a certain interest, said to amount to an undivided one-fourth, in the land. But if we concede this was shown, still the situation is not changed, for Joseph C. acted only as trustee for Ben S. in executing the alleged mortgage. He did not assume to mortgage any interest of his own.

The judgment of the court below is affirmed.

RUSSELL et al. v. HAYNER et al.

(Circuit Court of Appeals, Ninth Circuit. May 2, 1904.)

No. 1,015.

1. MECHANICS' LIENS-STATUTES-CONSTRUCTION.

Civ. Code Alaska, §§ 262, 265, 266 (31 Stat. 534, c. 786), providing for and authorizing the foreclosure of mechanics' liens, should be liberally construed, but such lien, being of purely statutory creation, can be established only by a substantial compliance with the statute.

2. SAME-OWNER OF BUILDING-STATEMENT.

Under Civ. Code Alaska, § 262 (31 Stat. 534, c. 786), providing that every builder shall have a lien on a building erected or material furnished or labor performed thereon at the instance of the owner of the building, etc., and section 266, making it the duty of every original contractor within a specified time to file with the recorder a claim, with the name of the owner or reputed owner, if known, a statement of a lien, and a complaint to foreclose the same, failing to state the name of the owner of the building, or to state that the name of the owner was unknown, was insufficient. though it stated the name of the holder of the legal title to the land, and the name of a vendee at whose instance the building was erected.

& SAME.

In order to establish a mechanic's lien under Civ. Code Alaska, § 262 (31 Stat. 534, c. 786), providing that every mechanic, builder, etc., performing labor on or furnishing material, shall have a lien on the same for work or labor done or material furnished at the instance of the owner of the building or other improvement, or his agent, etc., it must be alleged and proved that the work or labor was done "at the instance of the owner of the building or his agent"; a mere allegation that plaintiffs erected the structure at the instance of one who was in possession of the land under a contract to purchase with the owners being insufficient. 4 SAME-KNOWLEDGE OF OWNER.

A mechanic's lien cannot be established under Civ. Code Alaska, § 265 (31 Stat. 534, c. 786), providing that every building or other improvement constructed on any land with the knowledge of the owner, or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner, etc., where it did not appear from the complaint that the owners of the lot on which the building was erected had any knowledge of the contract made by the person in possession, under a contract of purchase, with the contractors, for the construction of a building, or that the building was constructed at the instance of such owners.

5. SAME-FEDERAL COURTS-LAW AND EQUITY.

Since the distinctions between law and equity are preserved in the federal courts, where the complaint in a suit in equity to foreclose a mechanic's lien in a federal court was insufficient for that purpose, it was not sustainable for the purpose of permitting plaintiffs to recover a personal judgment against the person liable on the contract.

Appeal from the District Court of the United States for the Second Division of the District of Alaska.

This is a suit in equity to foreclose a mechanic's lien under the provisions of the Code of Alaska. Section 262 of the Civil Code reads as follows: "Every mechanic * ** builder, contractor, and other persons performing labor upon or furnishing material shall have a lien upon

the same for the work or labor done or material furnished at the instance of the owner of the building or other improvement or his agent; and every contractor, subcontractor, architect, builder, or other person having charge of the construction, alteration, or repair, in whole or in part, of any building or other improvement as aforesaid shall be held to be the agent of the owner for the purposes of this Code." Section 265 provides that "every building or other improvement mentioned in section 262 constructed upon any lands with the knowledge of the owner, or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein; and the interest owned or claimed shall be subject to any liep filed in accordance with the provisions of this Code, unless such owner or person having or claiming an interest therein shall, within three days, after he shall have obtained knowledge of the construction, alteration, or repair, give notice that he will not be responsible for the same. by posting a notice in writing to that effect in some conspicuous place upon the land, or upon the building or other improvement situated thereon." Section 266 makes it the duty of every original contractor within a specified time to file with the recorder "a claim with the name of the owner or re

puted owner, if known." 31 Stat. 534, c. 786. The court below sustained a demurrer to the complaint interposed by defendants Helen F. Hayner and Robert Hayner, her husband, upon the ground that the plaintiffs' lien is defective, and the complaint "does not state facts sufficient to constitute a cause of action," and, the plaintiffs having elected to stand on their complaint, the court ordered the suit to be dismissed, and that Helen F. Hayner and Robert Hayner have judgment for their costs. From this judgment the appeal is taken.

13. See Mechanics' Liens, vol. 34, Cent. Dig. §§ 225, 231.