of the rents of the same premises covered by the deed above mentioned of May\1, 1915, from Leigh Lamoreaux to Lowell Lamoreaux. The claim for an accounting was based upon the alleged ownership of Genevra Lamoreaux of an undivided one-half interest in said premises, which in turn was based upon said deed and the devise contained in the will of Lowell Lamoreaux. The judgment in the suit determined that the deed was a mortgage, and that the plaintiff administrator was not entitled to an accounting. ed to an accounting from Leigh Lamoreaux the Supreme Court of the state is accepted in the federal courts. Stebbins v. Riley, 268 U. S. 137, 146, 45 S. Ct. 424, 69 L. Ed. 884, 44 A. L. R. 1454; Chanler v. Kelsey, 205 U. S. 466, 477, 27 S. Ct. 550, 51 L. Èd. 882; Saltonstall v. Saltonstall, 48 S. Ct. 225, 72 L. Ed., opinion filed February 20, 1928. [2] The Supreme Court of the state of Minnesota has recently construed the statute above quoted in an exhaustive opinion in the case of Lamoreaux v. Higgins, 171 Minn. 423, 214 N. W. 267. This case was one of a series of cases growing out of the litigation concerning the title to the land involved in the case at bar. The opinion in the case was handed down after the filing of the complaint in the case at bar. Because of this fact, there is a faint contention by counsel for appellant that the opinion should not be considered in the case at bar. We think, however, that the decision made no change in existing law, but simply stated clearly, what had not been done before, the construction of the statute we are considering. Under the authority of Fidelity National Bank v. Swope, 274 U. S. 123, 134, 135, 47 S. Ct. 511, 71 L. Ed. 959, we therefore quote from the opinion in Lamoreaux v. Higgins, supra, the following excerpts: 3. The issues involved in the suit in the state court brought by Leigh Lamoreaux against the administrator, Higgins, were whether Leigh Lamoreaux was the owner in fee of the whole of said premises, and whether the administrator had any estate or interest therein or lien thereon. The judgment determined that Leigh Lamoreaux was the owner of the whole of the said premises, and that the administrator and the estate of Lowell Lamoreaux had no estate or interest therein or lien thereon. It is seen, therefore, that the same issue of title which is raised in the case at bar was raised and determined in the suits in the state court. The fourth question remains: Are the state court judgments binding upon plaintiff in the case at bar? The parties to the suits in the state court were not the same as in the instant case. Here Genevra Lamoreaux is plaintiff and Leigh Lamoreaux defendant. In the state court, Genevra Lamoreaux was not a party to either suit. The authority for the administrator to be a party to litigation involving title to the lands of a decedent is found in section 8786, General Statutes of Minnesota 1923, which reads as follows: "General Powers and Duties.-Every executor and administrator shall be entitled to the possession of all real and personal estate of the decedent which has not been set apart for the surviving spouse or children, and shall be charged with all such property. He shall receive the rents and profits of the real estate until the estate is settled, or until delivered over, by order of the probate court, to the heirs or devisees. He shall keep in tenantable repair all houses, buildings, and fixtures thereon which are under his control. He may himself, or jointly with the heirs or devisees, maintain an action for the possession of the real estate or to quiet title to the same." The last sentence of the section was originally section 90 of chapter 46, General Laws of Minnesota, 1889. "It is true that the title of real estate vests in the heirs immediately upon the decease of the owner, intestate. Glencoe Ditching Co. v. Martin, 148 Minn. 176, 181 N. W. 108, following Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197. If that fact retains all the effects it had at common law, the argument under consideration would be unanswerable. But it cannot control 'statutes conferring on an executor or administrator control over, or possession of, the real property of decedent or capacity to sue or be sued in respect thereto.' 34 C. J. 1036. "Our Probate Code (established by chapter 46, G. L. 1889) provides one proceeding, in rem, the res being the entire estate of the decedent, real and personal, for both the administration and the distribution of that estate to those entitled thereto by law, creditors, heirs, legatees, or devisees. Dunnell's Minnesota Probate Law, §§ 614 and 617, citing, inter alia, Morin v. St. Paul, M. & M. Ry. Co., 33 Minn. 176, 22 N. W. 251, and Culver v. Hardenbergh, 37 Minn. 225, 33 N. W. 792. Every administrator is entitled to the possession of the real as well as personal estate of the decedent which has not been set apart for the surviving spouse or children. Section 8786, G. S. 1923. That right is not conditioned upon inadequacy of personal property to pay debts and expenses of administra [1] The construction of a state statute by tion. 26 F.(2d) 51 "The administrator's powers with respect to real estate having been substantially and significantly enlarged by statute, it is difficult to escape the conclusion that the extent to which heirs and devisees are bound by the exercise of those powers has been correspondingly increased. 2. Appeal and error 215(1)—Objections to instructions urged first on appeal will not be considered. Objections to instructions of trial court urged for the first time on appeal will not be considered. 3. Evidence 511-Evidence of experts based on comparison of handwriting, though not very reliable is admissible for what it is worth. "If the heirs are not bound, the statute is worse than meaningless, for it authorizes sterile actions and barren judgments. All else aside, if the administrator's right to temporary possession is the only right to be protected, why, in addition to the possessory action, give him a futile one to quiet title? He himself has no title to quiet, so if he quiets 4. Bills and notes 537 (2)—Whether accomany, it must be that of the heirs. "Our conclusion is that when an administrator acts within his statutory power in suing to recover possession of real estate or to quiet title thereto or to assert any right therein, he is asserting the right and title of his decedent and represents the heirs, and that in consequence they are concluded by the judgment." This construction of the statute is not only accepted by us, but meets with our entire approval. It is in line with the construction given similar statutes in other states. See 24 C. J. p. 134, § 599; Collins v. O'Laverty, 136 Cal. 31, 68 P. 327; Rice v. Carey, 170 Cal. 748, 151 P. 135; Cleland v. McLaurin, 40 Idaho, 371, 232 P..571; Bamforth v. Ihmsen, 28 Wyo. 282, 204 P. 345, 205 P. 1004. In view of the fact that the issue of title in the actions in the state court above mentioned was identical with the issue of title in the case at bar, and in view of the binding effect of the judgments in those actions upon the heirs and devisees of Lowell Lamoreaux, we reach the conclusion that the trial court was correct in holding that the title to the lands had become res adjudicata by the judgments in the actions in the state court. The bill was rightly dismissed. Decree affirmed. TOLL v. MONITOR BINDING & PRINTING CO. In action on note against accommodation indorser, one of defenses being that defendant's name was forged, evidence of experts based on comparison of handwriting, though unsatisfactory and not very reliable, was properly admitted for what it was worth. modation indorser's name was forged held question for jury under the evidence. In action on note against accommodation indorser, one of defenses being that defendant's name was forged, evidence held sufficient to go to jury on question of forgery. 5. Bills and notes 401-Notary public, who was also assistant teller of holder bank, held authorized to demand payment of note (Gen. St. Kan. 1915, § 6733). Notary public, who was also assistant teller of bank which was holder of note, held authorized, under Gen. St. Kan. 1915, § 6733, to demand payment of note. 6. Bills and notes 405-Facts held to show sufficient exhibition of note to maker on demanding payment (Kansas Negotiable Instruments Law [Gen. St. 1915, § 6601]). Where notary public and assistant teller of bank holding note called at office of maker party in charge of office, and stated to such to demand payment, and took matter up with party that he "had note here," there was a sufficient exhibition of note in compliance with Kansas Negotiable Instruments Law (Gen. St. 1915, § 6601). 7. Bills and notes 410-Notary's official seal attached to certificate of protest of note is sufficient prima facie proof of its authenticity. In the absence of impeachment thereof, the official seal of a notary public attached to the certificate of protest of promissory note for nonpayment is sufficient prima facie proof of its authenticity. 8. Bills and notes 330-Under general law, indorsement is necessary to maintain negotiability and to transfer free from equities. Under the general law of negotiable instru Circuit Court of Appeals, Eighth Circuit. April ments, indorsement is necessary to maintain 23, 1928. No. 7936. 1. Appeal and error 173(1)—Defenses argued for first time on appeal will not be considered. Defenses, not presented to the trial court, but argued for the first time on appeal, are too late, and will not be considered by the Circuit Court of Appeals. negotiability and to transfer free from equities, although under Kansas Negotiable Instruments Law (Gen. St. 1915, § 6553), a holder might possibly be one for value where there had been nothing more than the delivery of the note. 9. Bills and notes 497(1)-Indorsement is presumed to have been made before maturity, when note is in hands of third party. When a negotiable promissory note is in the hands of a third party, the presumption will apply that indorsement was made before maturity. 10. Bills and notes 525-Evidence held to show that bank from whom plaintiff indorsee took note back on suing accommodation indorser was bona fide holder for value. In action on note by indorsee, which had taken it back from bank against accommodation indorser, evidence held to show that bank acquired note in due course before maturity for value, and was a bona fide holder, unaffected by any infirmity in it entitling bank, even after note was overdue and dishonored, to transfer as good a title as it held. II. Bills and notes 362—One taking negotlable note from bona fide holder occupies same position as transferor, notwithstanding actual notice of defenses. Though generally indorsement of negotiable paper after maturity transfers legal title subject to all defenses of which overdue character of paper gives notice, an exception thereto exists where holder takes from the bona fide holder, in which case he occupies same position as his transferor, notwithstanding subsequent holder has actual notice of defenses, was a purchaser after maturity, or is not a purchaser for value. 12. Bills and notes 362-One taking note from bona fide holder for value before maturity may recover of accommodation indorser, though knowing of accommodation indorsement. Where bank was bona fide holder of note before maturity for value, party taking note from bank after maturity could recover against accommodation indorser, even though it had known of accommodation indorsement. 14. Bills and notes 362-Taking back of note by indorsee after maturity did not make note subject to same defense that accommodation maker could assert against original payee. That indorsee suing accommodation indorser took note back from bona fide holder for val ue, after maturity, whether merely to take up an obligation or taking an assignment of hold er's right to sue, did not make note subject to same defense of want of consideration that accommodation indorser could assert if suit had been brought by original payee. 15. Courts 359-Statutes of state where contract is made must be considered in construing contract. Though decisions of United States courts are not controlled by decisions of state courts on 16. Bills and notes 362-Indorsee taking note back from bona fide holder for value could recover of accommodation indorser, though knowing of accommodation indorsement at time of taking note (Gen. St. Kan. 1915, $$ 6553, 6556, 6585). Where indorsee took back note from bank which had acquired note in due course before maturity for value, and was a bona fide holder, value having been given on each transfer of note both before and after maturity, held that, under Gen. St. Kan. 1915, §§ 6553, 6556, 6585, indorsee had all rights of bank in respect to all parties who had become such prior to such time, and, in suit by indorsee against accommodation maker, it was immaterial that indorsee at time of taking instrument knew of such accommodation indorsement. 17. Bills and notes 371-Defense of want of consideration held not available to accommodation indorser sued by indorsee taking note back from holder after maturity. Even though action of indorsee of note in taking it back from holder after maturity opened door to equitable defenses in note, want of consideration between accommodation indorser and the original payee was not such a defense, since there was no consideration or it would not have been an accommodation indorsement. 18. Bills and notes 525-Evidence held not to sustain claim that indorsee knew when it took back note after maturity that accommodation indorser claimed it to be forgery. In action on note by indorsee taking it back from holder after maturity against accommodation indorser, evidence held not to sustain claim that indorsee knew when it took back note that accommodation indorser claimed it to be a for gery. 19. Bills and notes 514-Evidence that accommodation indorser sued on note had agreed with his employees not to sign note as indorser was not competent or material. In action on note against accommodation indorser, evidence that defendant had agreed with his employees not to sign notes was properly excluded as incompetent and immaterial. In Error to the District Court of the United States for the Western District of Missouri; Albert L. Reeves, Judge. Action by the Monitor Binding & Printing Company against Phil R. Toll. Judgment for plaintiff, and defendant brings error. Affirmed. C. W. German, of Kansas City, Mo. (Morrison, Nugent, Wylder & Berger, William G. Holt, and German, Hull & German, all of Kansas City, Mo., on the brief), for plaintiff in error. Charles F. Newman, of Springfield, Mo., and Floyd E. Jacobs, of Kansas City, Mo. a question of general commercial paper, the (Mitchell J. Henderson, of Kansas City, Mo., statutes of the state where the contract in question was made must be recognized and considered in construing the same. and Ben M. Neale, of Springfield, Mo., on the brief), for defendant in error. 26 F.(2d) 51 Before KENYON, Circuit Judge, and JOHN B. SANBORN, District Judge. KENYON, Circuit Judge. The defendant in error, Monitor Binding & Printing Company (hereinafter called the printing company) brought suit against plaintiff in error, Phil R. Toll, upon a certain promissory note in the sum of $5,000, executed June 5, 1920, by the People's College of Ft. Scott, Kan., and due in one year, payable to the order of the People's College, which note was signed by Toll as an accommodation indorser. This note was duly transferred before maturity by the People's College to the printing company in payment of a printing bill of $4,800. The printing company, in addition to canceling said bill, paid to the People's College the sum of $200, the difference between the face of the note and the bill. The printing company negotiated said note before maturity to the Ft. Scott State Bank, and received the money thereon. Upon its maturity, the bank attempted to collect the note, and, failing, proceeded to make protest thereof (proper protest is denied by Toll). The People's College failing to pay the note at maturity, it was taken back by the printing company from the bank, the exact arrangement not appearing in testimony, and the said printing company then commenced this action to recover from Toll. In the original answer it is claimed that the note was without consideration moving to Toll, and that the printing company acquired it after maturity; that the signature thereon purporting to be Toll's was a forgery. During the trial an amended answer was filed claiming that no proper presentment or protest of the note had been made, and also alleging failure of consideration. The court stated to the jury the issues as raised by the pleadings as follows: "First, whether the name of Phil R. Toll, the defendant, appearing on the back of the note in evidence, is the genuine signature of the defendant; second, whether the note is with or without consideration and therefore void; and third, whether presentment and a demand for payment was lawfully made to the maker so as to fix liability upon the indorsers." The jury found for the printing company and against Toll for the full amount of the note. [1,2] A number of defenses are argued here which were not presented to the trial court, for instance, at the close of plaintiff in error's reply it is urged for the first time that there is a variance between the allegations of the petition and the proof. This is too belated an afterthought to be considered by this court. Objections are also urged to the instructions of the court. No objections were made or exceptions taken to said instructions by counsel for Toll. It is apparent that such objections are now too late. We may say, however, that in our judgment the court's instructions fully covered the questions then at issue, and were apparently fairly satisfactory to both sides. Some of the instructions requested by Toll's counsel were given. A different theory of the defense of want of consideration is presented to us from that in the trial court. The court instructed that the note was made and negotiated for value. Toll now urges the theory of want of consideration between him and the original payee of the note, and claims such defense was available to him. It is quite apparent that the real defense relied on was forgery. If Toll never signed the note, then the printing company had no case. In the opening statement to the jury, with which we are favored in the record, counsel for Toll said: "The defense in this case, in a word, is that the paper which the plaintiff will produce in evidence does not bear upon its back the signature of this defendant, Phil R. Toll. Stripped of all unnecessary discussion and detail, that is the defense." All other questions were minor compared with this, and so seem to have been regarded by the parties at the trial. Of course, Toll had the right to rely on all defenses that he is entitled to make, and to stand strictly on his rights as an indorser. [3, 4] On the question of forgery, the jury found against Toll. Complaint is now made that the court erred in admitting in evidence signatures of Toll for the purpose of comparison with his alleged signature on the note without properly qualifying the testimony in its charge to the jury. Both sides used expert testimony as to the alleged signature of Toll. Evidence of experts based on comparison of handwriting is unsatisfactory and not very reliable, but is admissible for what it is worth. 1 Greenleaf on Evidence, § 578; Hammond v. Wolf, 78 Iowa, 227, 42 N. W. 778; Whitaker v. Parker, 42 Iowa, 585; Springer v. Hall, 83 Mo. 693, 53 Am. Rep. 598. Counsel for Toll seem to assume that the printing company's whole case in this record is based on expert evidence. Such is not the fact. Miss Teagarden, who had charge of Mr. Sheppard's office when he was absent, testified that the note was prepared in the office of the People's College; that at Mr. Sheppard's request, he being president of the col lege, she got Toll on the telephone at his home at Greenwood, Mo., and then turned the phone over to Mr. Sheppard, and she heard Mr. Sheppard make an engagement with Toll; that the note without Toll's signature was taken by Sheppard, and he was absent from the college for a couple of days, and when he returned she again saw the note with the name "Phil R. Toll" on the back of it; and that note was the same one which she identified as sued on in this case. The witness Milligan, who was assistant teller of the Ft. Scott State Bank, called on Toll with reference to the payment of the note. Milligan testified that Toll told him the signature was his; that he wanted Sheppard to take care of the note; that he then wrote a note to Mr. Cunningham, president of the bank, telling him he would be down and see him. This, coupled with the expert testimony, was unquestionably sufficient to enable the jury to pass on the question of Toll's signature. The court was careful in its instructions to define expert testimony and to tell the jury that such testimony was merely advisory and they were not bound thereby, and that they were the judges of what weight they should give the same. It seems to us the question was fully covered by the court, and that Toll has nothing of which to complain in this respect. Certainly there was evidence from which a jury could conclude that Toll signed the note; they so concluded, and it is not for us to disturb that finding. [5] The court submitted to the jury the question of presentment and protest, and gave an instruction requested by counsel for Toll, which covered the entire matter, as follows: "The court instructs the jury that the burden of proof is upon the plaintiff to prove by the preponderance of the evidence, which means the greater weight of the evidence (that is, the evidence that is the more satisfactory and convincing to the minds of the jurors) that the promissory note in question in this action was exhibited (that is, shown) to Miss Teagarden at the office of the People's College of Ft. Scott, Kan., after the note became due, by a person authorized to receive payment of the note by the Ft. Scott State Bank, and that payment of the note was then and there demanded of Miss Teagarden at the office of the People's college, and, if you do not so believe from the preponderance of the evidence, you should render a verdict in favor of the defendant." The jury found against Toll's contention on this question. The general law as to protest by a notary is well settled. Section 6600 of the Kansas Negotiable Instruments Law, which law is in line with the general law merchant, provides for presentment for payment, and section 6601, provides: "The instrument must be exhibited to the person from whom payment is demanded, and when it is paid must be delivered up to the party paying it." It is this section that it is claimed was not complied with; i. e., that the note was not exhibited to the maker. Aydelotte was the notary public, and was also assistant teller of the bank. At the time he called at the office of the college, the president, Mr. Sheppard, was not there, and he took the matter up with the party in charge of the office, Miss Teagarden. After Aydelotte had testified with reference to this in rather an indistinct and hazy way, he was recalled and questioned again concerning it. We quote that part of the record which refers to the conversation with Miss Teagarden about the note in question: "Q. Well, do you remember what you said approximately, or in substance, what was said to her? A. I think I do. "Q. Will you tell it please? A. 'I have the note here signed by the People's College, J. I. Sheppard, president, that is due and must be paid. It was handed to me to protest if payment is not made.' "Q. Were you able to get the money? A. No." As to Aydelotte's authority to demand payment of the note, section 6733 of the General Statutes of Kansas 1915 provides: "Notaries public shall have authority to demand acceptance or payment of foreign or inland bills of exchange and of promissory notes, and protest the same for non-acceptance or non-payment, as the case may require; and to exercise such other powers and duties as by the law of nations and commercial usage may be performed by notaries public." Furthermore, Aydelotte was the assistant teller of the bank. There can be no question as to his authority to demand payment. [6,7] In discussing a presentment to a bank for payment where a party asked the bank to credit a check to his account and it refused, the court said that this amounted to the dishonoring of the check, and it was not necessary to go through the form of specifically demanding its payment in cash over the counter, saying (Gregg v. George, 16 Kan. 546, 549): "Demand and refusal may be necessary; but no particular form or expression is essential to either. It is sufficient if it clearly appears that the bank, after a demand, refuses to accept the check as of the value its face indicates." Evidently Ayde |