ham, recommended by him as a proper person to take charge and dispose of the interest of Tracey in the property of the land company; that the execution of the deed to Ingham having been delayed for a long time, Allen suggested that a new deed, with the name of the grantee in blank, should be sent to Tracey, so that some other person, if Ingham was not acceptable to him, might. be inserted, stating that Tracey had promised to convey his interest to Withrow, and that if, in winding up the affairs of the company, there was anything left of it, he would give it to Mrs. Allen. The deed itself shows, by its use of the masculine pronoun in all places where reference to the grantee is made, that the draughtsman never contemplated its execution to a woman. Subsequently, according to the testimony of Withrow, the deed was shown to Ransom, who advised that the interest of Tracey in the property of the land company was one-half instead of onefourth; and who, at the request of Allen, drew another deed for Tracey to sign similar to the one in blank, except that it represented Tracey's interest to be one-half of the property and made Withrow the grantee.

The statement that Withrow consented to act as trustee of Mrs. Allen, or that the deed of Tracey to him was executed upon any trust for her, is also denied by Withrow; and it is inconsistent with the declarations and conduct of both himself and Tracey. Immediately upon the request of Allen for the property, and under date of December 8, 1877, he wrote to Tracey, informing him of the decree of the circuit court, and the request of Allen, and the refusal to comply with it in the absence of instructions from him. "You will remember," he writes, "that one-eighth interest of the entire speculation was awarded to me. The other eighth of the property recovered by me I hold subject to your order. I have understood from Mr. Ransom, and have inferred from your conversation with me, that before the commencement of this suit you intended to be liberal to Mrs. Allen in disposing of your share; and Mr. Allen, relying upon this, has requested me to convey the one-eighth interest which I hold for you to him. In view of the fact that I have never received definite instructions from you to make any disposition of it, and the further fact that Mrs. Allen is now dead, I have not felt at liberty to make any conveyance without instructions from you in writing.'

No answer was made to this letter, nor was any instruction given by Tracey as to his wishes or intentions on the subject, except such as are found in the paper addressed to William L. Scott, under date of December 12, 1877, and in the deed executed to him soon afterwards; and these, as already seen, negative the idea that Withrow was to hold the property for the benefit of Mrs. Allen. In this communication, it is seen, Withrow asserts a right to one-eighth interest in the entire property of the land company, as having been awarded to him. If this claim of an interest in the property had been a false and fraudulent one, set up to defraud others, we should expect some denial of it from Tracey; but instead of that we find its correctness

affirmed by him. It is difficult to believe that a claim for property, estimated at the time to be worth $40,000, would have received recognition from one who, if the claim was fraudulent, knew it to be 80. On the contrary, we should expect that it would meet with instant and indignant repudiation. But if we admit the statement of the complainants as to the alleged promise of Tracey to give his interest in the property of the land company to Mrs. Allen, and as to the execution of the two deeds, the one in blank and the one to Withrow, there is no case shown for the relief prayed by the bill. The promise alleged to have been made in conversation with Allen and his daughter on the trip to St. Paul was without consideration, good or valuable; there was no relationship, by blood or marriage, between Mrs. Allen and Tracey. It was the promise of a pure donation to be subsequently made; and, until executed, it was, in a legal view, valueless.

The deed in blank passed no interest, for it had no grantee. The blank intended for the name of the grantee was never filled, and until filled the deed had no operation as a conveyance. It may be and probably is the law in Iowa, as it is in several states, that the grantor in a deed conveying real property, signed and acknowledged, with a blank for the name of the grantee, may authorize another party, by parol, to fill up the blank. Swartz v. Ballou, 47 Iowa, 188; Van Etta v. Evenson, 28 Wis. 33; Field v. Stagg, 52 Mo. 534. As said by this court in Drury v. Foster, 2 Wall. 33: "Although it was at one time doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument, the better opinion at this day is that the power is sufficient." But there are two conditions essential to make a deed thus executed in blank operate as a conveyance of the property described in it: the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named. Allen, to whom it is stated the deed was handed, with authority to fill the blank and then deliver the deed, gave it to his wife without filling the blank, and she died with the blank unfilled. The deed of Tracey to Withrow embraced real as well as personal property. It was for the purchase and sale of real property that the land company was formed, and by the terms of the contract of association all the property of the company remaining after payment of taxes, expenses, and advances was to be deemed profits, and divided in kind or converted into money and then distributed. Though the declaration of trust by Ebenezer Cook speaks of the interest of Tracey in the land company as an interest in its "profits," that term is used with reference to its meaning as declared in the contract of association, to which that declaration of trust refers, and to which it is annexed.

In the partition by the decree of the circuit court of the United States of the interest conveyed to Withrow, "lands, lots, notes, contracts, and mortgages" are specified as awarded and set apart to him.

So far as the real property is concerned, no trust in relation to it could be established under the statute of frauds of Iowa in force when the deed of Tracey was signed, except by an instrument in writing executed in the same manner as a deed of conveyance. The language of the statute is: "Declarations, or creations of trust, or powers in relation to real estate, must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from the operation or construction of law." The statute also enumerates, among the contracts in reference to which no evidence is competent unless it be in writing, and signed by the party or his lawfully authorized agents, "those for the creation or transfer of any interest in lands, except leases for a time not exceeding one year. So far as the personal property conveyed to Withrow is concerned, it must be admitted that a trust may be established by parol evidence; but such evidence must be clear and convincing, not doubtful, uncertain, and contradictory, as in this case. The evidence must consist of something more than loose conversations with third parties. The declarations of the grantor relied upon must be made at the time of his conveyance, or while he retains an interest in the property, and be so connected with the conveyance as to justify the conclusion that it was made or is held in execution of the purposes declared. Declarations of a purpose to create a trust not carried out are of no value, nor are direct promises to that effect unaccompanied with considerations turning them into contracts.

The deed of November 16th was handed to Ransom to be delivered to Withrow without any declaration from Tracey as to the purpose for which it was made or the considerations by which it was supported. Nothing was said at that time which could change the absolute character of the instrument, nor is there any evidence of any declarations subsequently made, by parol or in writing, by the grantor with respect to that deed, except such as are found in the communication to Scott and the deed to him. It does not affect the conclusion, therefore, whether we treat the whole property conveyed to Withrow as real or personal property, or as consisting of both. Real property owned by a partnership and purchased with partnership funds is, for the purpose of settling the debts of the partnership and distributing its effects, treated in equity as personal property. It matters not whether it be so treated here. In any view, no legal trust was created with respect to the property in favor of Mrs. Allen which she could have enforced had she been living, or which can now be enforced by her heirs at law.

Decree affirmed.

(109 U. S. 641)

CLEMENTS v. ODORLESS EXCAVATING APPARATUS Co.

(January 7, 1884.)

PATENTS FOR INVENTIONS REISSUED LETTERS PATENT No. 6,962-INFRINGE

MENT.

Claims 1 and 3 of reissued letters patent No. 6,962, granted to Lewis R. Keizer, February 29, 1876, for an "improvement in apparatus for cleaning privies,' (the original patent, No. 115,565, having been granted June 6, 1871, to Henry C. Bull and Joseph M. Lowenstein, on the invention of said Bull, and the application for the reissue having been filed January 11, 1876,)-namely, "1. A privy-vault-cleaning apparatus, consisting of an air-pump, a deodorizer, and suitable tubular connections, in combination with an independently movable receiving cask, having an induction passage or opening, and also an air opening for connection with the air-pump, and provided with screw-necks at each opening for receiving sealing-caps or covers, substantially as described, whereby the movable cask may be located in any desired position with relation to the vault and privy, and the pump and deodorizer located in any desired position with relation to the vault, privy, and cask, and also whereby the casks, when filled, may be handled as is usual with filled casks, as set forth." "3. The combination, with a portable night-soil cask, of a float-valve located at the air-passage, substantially as described, whereby the fluid matter is prevented from entering the air-passage and clogging the suction air pipe and pump, as set forth," are invalid, because they are for inventions not indicated in the original patent as inventions, being for sub-combinations in combinations claimed in the original, and were made for the purpose of covering features described in patents issued to others during the interval between the granting of the original and the application for the reissue.

Those features are contained in the defendant's apparatus, and that apparatus does not infringe any claim in the original patent.

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

Hector T. Fenton, for appellant.

Benj. Price, for appellee.

BLATCHFORD, J. This is a suit in equity, brought for the infringement of reissued letters patent No. 6,962, granted to Lewis R. Keizer, February 29, 1876, for an "improvement in apparatus for cleaning privies," the original patent, No. 115,565, having been granted June 6, 1871, to Henry C. Bull and Joseph M. Lowenstein, on the invention of said Bull, and the application for the reissue having been filed January 11, 1876. The specification says:

"My invention consists, mainly, in a sink-cleaning apparatus, consisting of an air-pump, a deodorizer, and suitable tubular connections, in combination with an independent or movable receiving cask, having an induction passage or opening, and also an air-passage for connecting with the air-pump and provided with stench and water tight covers for both passages, whereby the movable cask may be located in any desired position with relation to the vault, and the air-pump and the dodorizer properly located with reference to the vault and cask, and also whereby the cask, when filled, may be trundled on its bilge or end, after the usual manner of handling casks or barrels. My invention consists, further, in the combination, with the cask, of a flanged opening, a detachable suction-pump or funnel connected with the flange of the opening, and a check-valve located within the cask for retaining the offensive

matter after passing through the valve. My invention still further consists in the combination, with the air-passage of a night-soil cask, of a float-valve, whereby, when the cask is filled with fluid matter, the valve will be floated and closed, thereby indicating that the cask is filled, and preventing the fluid matter from entering the conducting-pipe and passing through the air-passage to the air-pump, which would otherwise be liable to have its valves clogged thereby and rendered inoperative. To more particularly describe my invention, I will refer to the accompanying drawings, in which figure 1 represents, in side view, a cask embodying several features of my invention, located within

a privy. Figure 2 represents, in side view, an air-pump connected with the cask by a flexible tube or suction-hose, and provided with a deodorizer. Figure 3 represents a privy vault. Figure 4 represents, on an enlarged scale and in detail, in vertical central section, the cask shown in Figure 1. A vault is indicated at A. It is provided with the usual entrance or opening, as at a. B denotes one of several casks or receptacles which are employed in connection with an air-pump, as at C, for removing the offensive matter from the vault. The cask, B, has at one end a screw-neck, i, and the check-valve, d, which opens inwardly. Said cask also has another screw-neck, as at M, to which is attached the suction-hose which communicates with the air-pump. Attached