but the particular language was used in discussing the question whether an Indiana corporation, which had been reincorporated in Ohio, had power, under the law of Ohio, to issue bonds drawing 10 per cent. interest. The question was, therefore, directly presented to the court, and had to be decided, whether an Ohio corporation could, under Act Dec. 15, 1852, issue bonds drawing 10 per cent. interest, and the question was answered in the affirmative. Since that decision, Act Dec. 15, 1852, has been amended to its present form, as it appears in section 3290, which limits the power to a sale or negotiation of its bonds or notes at not less than 75 per cent. of par. Taking sections 3287 and 3290 together, this would really restrict the borrowing power of railroad companies to loans with annual interest at the rate of $7 on $75, or something more than 9 per cent. It is not claimed that the loans here in controversy exceed such a rate. It is said that the case of Coe v. Railroad Co., 10 Ohio St. 372, 75 Am. Dec. 518, overrules the construction put upon section 3290 in Junction R. Co. v. Bank of Ashland. I do not think So. It was held in the Coe Case that the issue of bonds drawing 7 per cent., payable semiannually, was not a violation of section 3287, limiting the power of railroad companies to the issue of bonds bearing 7 per cent. or less, and that under section 3290 such bonds might be sold by the company issuing them at a discount. If this implies that bonds drawing more than 7 per cent. may not be issued, it only refers to the form of the obligation, and not to the essence; for it is palpable that the sale by the obligor of the bond drawing 7 per cent. interest at a discount is nothing more than the borrowing of money at a greater rate than 7 per cent. In the case at bar the obligations are not, on their face, obligations drawing more than 7 per cent. interest, and I should hesitate long to declare them void, either as usurious or as ultra vires the defendant railroad company, on a mere objection to their form, when the railroad company really has the power to do that which is, in effect, the borrowing of money at a greater rate of interest than is stipulated for in such obligations. In so far as sections 3287 and 3290 permit railroad companies to borrow money at a greater rate than 8 per cent., they do repeal the usury laws as to such companies." When Judge Taft said that sections 3287 and 3290 of the Revised Statutes of Ohio, construed together, "restrict the borrowing power of railroad companies to loans with annual interest at the rate of seven dollars on seventy-five dollars, or something more than nine per cent.," and that it was "not claimed that the loans here in controversy exceed such a rate," he did not consider that the rate would be affected by the discount for the use of the money actually received, and that the rate admissible upon his construction of the statutes must be found by apportioning the discount to the time of the loan and adding it to the running interest. His attention was called to this, but he denied a rehearing, although the rate thus determined much exceeded 9 per cent. upon two of the contracts involved, saying that the rate thus determined did not exceed the power of the companies to allow under the statute If these Ohio companies might have made their notes bearing interest at 7 per cent., and then sold them at a discount of 25 per cent. to raise the means to pay for this equipment, we see no reason why they may not execute their notes direct to the seller, and include therein a rate of interest which they might lawfully pay if the form of the transaction had been somewhat different. That the Ohio statutes, thus construed, permit very extortionate terms to be exacted from railroad companies must be admit ted. The effect is that Ohio railroad corporations are virtually outside the usury laws of the state. Every dollar of the large decree in favor of the Railroad Equipment Company represents interest in excess of 7 per cent. upon the aggregate of the original contracts, when the payments made are applied to the agreed value of the equipment furnished, with interest at 7 per cent. We see, however, no escape from the conclusion that in agreeing to pay such excessive rates of interest the companies did not violate the usury laws of Ohio or exceed their corporate powers under the law of Ohio. A like result would follow if the notes or "lease warrants" be regarded as governed by the law of New York in respect to usury, so far as they are payable there. By the statute law of that state the defense of usury may not be made by a corporation. Bank v. Hoge, 35 N. Y. 65. Another view of these contracts has been pressed upon us in support of their validity. It is said that the agreed "value" fixed upon the equipment sold by each contract does not constitute the "price" at which the property was sold, and that the "price" which the railroad company agreed to pay was the aggregate of the cash payment and the monthly payments for which notes were given. The fact that the value of the property sold is stated in the agreement, and that the cash payment to be made is stated as a given per cent. of this agreed value, has a strong tendency to indicate that the notes given for deferred payments include the balance of this agreed value plus an agreed amount as interest for forbearance. This suspicious appearance is not controverted by evidence tending to show that the value agreed upon and the price to be paid were not identical. In such circumstances we are not disposed to rest our affirmance of the action of the court below upon any other ground than that already given. The next objection is that the equipment company cannot maintain a suit to recover the equipment conditionally sold without complying with the Ohio conditional sales act of 1885. Rev. St. Ohio, § 4155. That act requires such a vendor to tender back to the purchaser or lessee not less than 50 per cent. of the price received. We quite agree with the circuit court, and for the reasons stated in the opinion of Judge Taft, that the act of 1885 does not apply to sales of railroad equipment. The purchase and sale of railroad equipment by conditional contracts is regulated by the acts of March 16, 1882, and of April 12, 1889, being sections 3378b-3378d, Rev. St. Ohio, inclusive. 93 Fed. 702, 705. The title to the equipment sold under the contracts here involved remained in the vendors until fully paid for. The interest of the railroad companies and their mortgagees was but an equitable interest, and subject to the terms of the conditional sale. The court below did not award to the equipment company a separate sale of this incumbered property, but directed that it should be sold as the property of the railroad company, and that out of the proceeds of sale the equipment company should be paid next after costs and receiver's debts so far as such debts were created "in preserving or improving said equipment." We think this reservation of priority to receiver's debts incurred in preserving or improving this equipment was erroneous. The purchasers were contractually obligated to preserve and repair the property. If they saw fit to place improvements thereon, it was at their own risk. The purchasers will get the benefit of the improvements by the enhanced value of the property. Yet under this decree, if the property should sell for only the amount expended thereon, the vendors would go unpaid, having been improved out of their property without their consent. The decree will be modified in this respect, and in all others affirmed. The costs in No. 886 will be paid by the receiver out of any funds in his hands. (108 Fed 918.) KURSHEEDT MFG. CO. v. NADAY et al. SAME v. ADLER et al. (Circuit Court of Appeals, Second Circuit. April 24, 1901.) Nos. 116, 117. COSTS APPELLATE Proceedings-Printing Brief. Unless provided for by special rule, the cost of printing briefs on appeal will not be allowed as part of the taxable costs or disbursements. Appeals from the Circuit Court of the United States for the Southern District of New York. On motion to tax cost of printing brief. For former opinions, see (C. C.) 103 Fed. 948; 46 C. C. A. 422, 107 Fed. 488. Antonio Knaust, for appellants. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. PER CURIAM The rule in this court for many years has been not to allow the sum paid for printing briefs or arguments as part of the taxable costs or disbursements, except when specially provided for by rule. In this respect the practice conforms to that of the supreme court. (108 Fed. 919.) NELSON V. COOPER. (Circuit Court of Appeals, Fifth Circuit. May 14, 1901.) No. 1,001. 1. LIMITATIONS—Color of Title TO SUPPORT PLEA-DEED NAMING No Grantee. A certified copy of the record of a deed which contains the name of no grantee, although a marginal entry by the clerk on such record gives the name of grantor and grantee, is inadmissible in evidence to show title or color of title from the government in a defendant claiming under subsequent conveyances not otherwise connected with the title of the patentee, to entitle such defendant to rely on the three-year limitation in Rev. St. Tex. 1895, arts. 3340, 3341; and in the absence of such connecting link the subsequent deeds are also inadmissible to support such plea of limitation. 2. SAME NECESSITY OF PLEADING-PROVING IN REBUTTAL. Where defendant in an action of trespass to try title, under a plea of not guilty, offered in evidence an outstanding title acquired by him pending the suit, plaintiff was entitled in rebuttal to introduce evidence to make out limitation in his favor as against such title under the fiveyear limitation of Rev. St. Tex. 1895, art. 3342, although he did not plead such statute. In Error to the Circuit Court of the United States for the Northern District of Texas. A. C. Prendergast, for plaintiff in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. MCCORMICK, Circuit Judge. J. D. Cooper, the defendant in error, on February 2, 1900, brought this action of trespass to try title to land described in the petition against C. O. Nelson, Jr., the plaintiff in error. The essential averments in the petition were the formal ones prescribed by the statute. The defendant answered by plea to the jurisdiction, the plea of "not guilty," and a special plea of the three-year statute of limitations. The trial resulted in a verdict and judgment in favor of the plaintiff. The defendant submits that the trial court erred in 14 particulars, set out in the assignment of errors. We do not find in any of these ground for a reversal of the judgment. The thirteenth and fourteenth specifications relate to the refusal of the trial judge to give a requested charge on the subject of the three-year limitation, and his refusal or failure to give any charge on that subject. To support the plea of the three-year statute of limitation it was necessary for the defendant to have shown title, or color of title, from the governIment to himself. Rev. St. Tex. 1895, arts. 3340 (3191), 3341 (3192). The land in controversy is embraced in a grant that was made by the government to William H. King on July 29, 1846. The defendant introduced the patent evidencing this grant. He then offered a certified copy of an instrument in writing in the form of a deed to land, perfect in every particular except that it named no grantee. This paper was executed by W. H. King in the presence of two witnesses, and had been properly acknowledged and duly recorded in the deed records of the county which then embraced the land, in 1852. in the body of this writing there was no grantee named, but on the margin of the record, opposite the entry of this instrument, the clerk who made the record had written these words: "W. H. King to J. R. Craddock." Objection to the introduction of this paper as a deed, on the ground that it named no grantee, was sustained by the court. Thereupon the defendant offered in evidence, for the purpose of supporting his plea of the three-year limitations, 13 other mesne conveyances from John R. Craddock, through successive grantees, to the defendant. This consecutive chain of conveyance to the defendant from Craddock includes the deed from C. A. Poulson to C. O. Nelson, the deed from C. O. Nelson to E. Hauke, and the deed from E. Hauke to the deferant,-the 3 deeds which had been introduced by the plaintiff to prove a common source of title. Each of these 13 instruments, when offered by the defendant as links in a chain to show title or color of title, was excluded by the court on the objection of the plaintiff that the instrument offered as a deed from W. H. King to J. R. Craddock had been excluded, showing a complete link lacking in this chain of title. This action of the trial court was manifestly correct. The defendant had shown no title or color of title from the government to himself, acquired prior to the institution of this action. There was, therefore, no basis to support the plea of the three-year statute of limitations, and the judge rightly refused the requested charge, and rightly refrained from giving, or refused to give, the jury any instruction on that issue, thus properly withdrawing it from the jury. It was admitted by the parties that the patentee, W. H. King, died on January 8, 1861, and left as his only heirs his children, C. M. King and Mrs. M. E. Dumble. The defendant offered in evidence a deed from C. M. King' to G. J. Gibbs, dated July 17, 1893, and duly recorded July 31, 1893, purporting on its face to be given in consideration of the sum of one dollar paid, and to bargain, sell, release, and forever quitclaim unto the grantee, his heirs and assigns, all the grantor's right, title, and interest in and to that certain tract or parcel of land lying in the county of Bosque and state of Texas, embracing the land in controversy, being described as 1,652 acres, more or less, of the William H. King survey, near the town of Clifton, being the same tract deeded by William H. King, deceased, to J. R. Craddock, on or about the 21st of April, 1852. The interest conveyed is the entire right, title, and interest in the said tract of land to which the grantor may be entitled as an heir at law of the said William H. King, deceased, and the deed recites that: * 串 "This deed is made for the purpose of correcting an error in the deed from William H. King, deceased, to the said J. R. Craddock, which said deed is recorded in McLennan county. The deed so recorded fails to show the name of the grantee, J. R. Craddock, and this conveyance is made for the purpose of correcting said omission, and to ratify and confirm the deed from the said William H. King, deceased, to said J. R. Craddock." The defendant then introduced in evidence a deed from G. J. Gibbs to the defendant to the property in controversy, dated April 27, 1900. This was a quitclaim deed, and expressed a consideration of $10. In rebuttal the plaintiff was permitted to introduce in evidence, over the defendant's objection, for the purpose of making out limitation in the plaintiff's favor, the deed from C. A. Poulson to C. O. Nelson for the lots in controversy, dated March 31, 1886, properly acknowledged, and recorded in the deed records of Bosque county, Tex., on the same day. This deed had been admitted for another purpose. There was in evidence undisputed testimony that C. O. Nelson had occupied and used the land in controversy for more than five consecutive years next before the date of his sale to E. Hauke, and that he paid the taxes thereon each and every year from the time he purchased it from Poulson in 1886 until he sold it to Hauke. As applicable to this chain of title, acquired after the bringing of this suit, the defendant requested the court to charge the jury that: "The chain of title introduced by defendant from the state of Texas down to him shows that he is the owner of an undivided one-half of the lots sued for, regardless of all other questions in this case, and you are therefore in |