27 F.(2d) 625 Owens v. Lewis, 46 Ind. 488, 15 Am. Rep. 295; Midyette v. Grubbs, 145 N. C. 85, 58 S. E. 795, 13 L. R. A. (N. S.) 278; Clarke Bros. v. McNatt, 132 Ga. 610, 64 S. E. 795, 26 L. R. A. (N. S.) 585; 17 R. C. L. p. 1073. See, also, 17 R. C. L. pp. 1070, 1071; Hendrickson v. Lyons, 121 Wash. 632 at 637, 638, 209 P. 1095; Myers v. Arthur, 135 Wash. 583, at 586, 238 P. 899. In addition to the foregoing, defendant cites: Seymour v. LaFurgey, 47 Wash. 450, 92 P. 267; Thill v. Johnston, 60 Wash. 393, 111 P. 225; Emerson v. Shores, 95 Me. 237, 49 A. 1051, 85 Am. St. Rep. 404; Bolland v. O'Neal, 81 Minn. 15, 83 N. W. 471, 83 Am. St. Rep. 362; Butterfield Lbr. Co. v. Guy, 92 Miss. 361, 46 So. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540; Giles v. Simonds, 15 Gray (Mass.) 441, 77 Am. Dec. 373; Lee Lbr. Co. v. Hotard, 122 La. 850, 48 So. 286, 129 Am. St. Rep. 368. Section 11101, Remington's Comp. Stat. of Wash., provides: "Standing timber owned separately from the ownership of the land upon which the same may stand or be growing, for the purposes of assessment and taxation shall be considered and is hereby declared to be personal property." The corresponding statute of Idaho differs diametrically from the foregoing, and is as follows: Section 3101, Comp. Statutes Idaho 1919: "Real property for the purposes of taxation shall be construed to include land, and all standing timber thereon, including standing timber owned separately from the ownership of the land upon which the same may stand. Both of these sections are for the guidance of state officers in the assessment and taxation of property where the land, except the timber, may be in one ownership and the timber thereon in another. The stamp tax now being considered is one upon written conveyances of realty, and therefore whether standing timber is realty or not is to be determined, rather under those laws regulating the transfer of realty and the cases construing them, than in the light of statutes of the nature of the foregoing sections. Section 10550 of Remington's Comp. Stat. of Washington, provides: "All conveyances of real estate or of any interest therein, and all contracts creating or evidencing any incumbrance upon real estate shall be by deed." It is stipulated that each of these conveyances makes provision for the actual severance and removal of the timber from the land within a reasonable time. It may be con ceded that under the decisions of the Supreme Court of the State of Washington each conveyance effected a constructive severance of the timber, and that in each instance it thereby became personal property. The foregoing concession, however, does not control the determination of the issue. The question really is, whether until so constructively severed, the timber and land being in the same ownership, the timber is realty, to be conveyed by deed, or personalty. In so far as the timber conveyed in Washington is concerned, the decision of its courts have concluded the matter. . In France v. Deep River Logging Co., 79 Wash. 336, at page 339, 140 P. 361, 362 (Ann. Cas. 1916A, 238), the court says: 660 Counsel for appellant first contended that respondents' tax deed did not convey to them the title to the timber upon the land, because the timber was constructively severed from the land and became personal property by the conveyance of Dyer to Mooers in 1892. Prior to the act of 1907 (Rem. & Bal. Code, § 9095; P. C. 501, § 23), which became the law long after the assessment and levy of the taxes upon which respondents' foreclosure and deed rests, we had no statute law touching the question of standing timber being real or personal property for purposes of assessment and taxation when separately owned. It is elementary law that standing timber is real property-as much so as the land on which it stands-when the title to both the timber and the land is vested in one ownership. It may now be regarded as the settled law of this state, in harmony with the decided weight of authority elsewhere, that conveyance of standing timber, with the right of entry upon the land and removal of the timber therefrom in the future, whether the time of removal be measured by stated or reasonable time, is within our statute requiring conveyances of real estate or any interest therein to be by deed. Rem. & Bal. Code §§ 8745, 8746 (P. C. 143, §§ 1, 3); Seymour v. LaFurgey, 47 Wash. 450, 92 P. 267; Thill v. Johnston, 60 Wash. 393, 111 P. 225; Engleson v. Port Crescent Shingle Co., 74 Wash. 424, 133 P. 1030; 20 Cyc. 212; Ives v. Atlantic & N. C. R. Co., 142 N. C. 131, 55 S. E. 74, 115 Am. St. Rep. 732 [9 Ann. Cas. 188]; see note to this case in 9 Ann. Cas. 192. "It is plain, therefore, that the timber here involved was, in any event, real property until conveyed by Dyer to Mooers in 1892, and that its conversion into personal property depends entirely upon the effect of that conveyance. Manifestly, the timber did not become personal property unless it became such by virtue of that conveyance. The conveyance by Mooers to appellant thereafter had no effect upon this question. If this property right acquired by Mooers and his grantee, appellant, became personal property by Dyer's conveyance, manifestly, it then ceased to be an interest in real estate, and could thereafter be conveyed otherwise than by deed; interest in real estate being required to be so conveyed by Rem. & Bal. Code, 88 8745, 8746 (P. C. 143, §§ 1, 3), leases for less than one year being the only exception (Rem. & Bal. Code, § 8802 P. C. 295, § 1)." See, also, Beckman v. Brickley, 144 Wash. 558 at 561, 258 P. 488. The laws of Idaho, other than section 3101, supra, are: Section 5325: "Real Property Defined.Real property or real estate consists of: "1. Lands, possessory rights to land, ditch and water rights, and mining claims, both lode and placer. "2. That which is affixed to land. "3. That which is appurtenant to land." Section 5373: "Conveyance-How Made. -A conveyance of an estate in real property may be made by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing." Section 7974: "Transfers of Real Property to be in Writing.-No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing." The court of Idaho not appearing to have considered this question, the court will hold with the weight of authority, unless to do so it is convinced would be to err. While counsel for both plaintiff and defendant claims the weight of authority favors his side of the case, from an examination of the authorities, including those cited, it is clear that as stated by the court in France v. Deep River Logging Company, supra, "the decided weight of authority" is to the effect " that conveyance of standing timber, with the right of entry upon the land and removal of the timber therefrom in the future, whether the time of removal be measured by stated or reasonable time, is within our statute requiring conveyances of real estate or any interest therein to be by deed." The findings, conclusions, and judgment will be prepared in defendant's favor and presented upon notice. McCAUGHN, Collector of Internal Revenue, v. PHILADELPHIA BARGE CO. et al. District Court, E. D. Pennsylvania. April 23, 1928. No. 12356. Internal revenue 23-Action on bond given by taxpayer on filing claim for abatement held maintainable after expiration of limitations against collection of tax; "liability" (Revenue Act 1918, 40 Stat. 1057; Revenue Act 1926, § 1106(a), 26 USCA § 1249 (a). Action on bond given by taxpayer and sure ty in connection with filing of a claim for abatement before limitation of Revenue Act 1918 (40 Stat. 1057) against collection of income tax had run held maintainable by government after expiration of statutory period allowed for Revenue Act 1926, § 1106 (a), 26 USCA § 1249 proceedings to collect the tax, notwithstanding (a), providing that limitations shall not only operate to bar the remedy, but shall extinguish meaning liability for taxes imposed by revenue the liability; "liability," as used in statute, law, and not contractual liability created by bond. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Liability.] 27 F.(2d) 628 of $12,635 on account of its income for the year 1918. On February 15, 1921, the taxpayer presented a claim for abatement, and two days later the bond in suit was filed. On May 14, 1923, the Commissioner of Internal Revenue rejected the barge company's claim for abatement, and found the additional tax of $12,635 as assessed to be correct. Demand was duly made, and this suit was begun in August, 1926. It is agreed that the taxpayer's return for the year 1918 (upon which the additional assessment was made) was filed April 29, 1919. It is also conceded by the government that if no bond had been given no proceeding for the collection of the additional tax could have been brought after April 29, 1924, by reason of the limitation contained in the Revenue Act of 1918 (40 Stat. 1057). The question here for decision, therefore, is whether, after the expiration of the statutory period allowed for proceedings to collect a tax, a suit can be maintained upon a bond given before the statute had run by the taxpayer and a surety in connection with the filing of a claim for abatement. The defendant's principal contention is based upon section 1106(a) of the Revenue Act of 1926, which reads in part as follows: "The bar of the statute of limitations against the United States in respect of any internal revenue tax shall not only operate to bar the remedy but shall extinguish the liability. (26 USCA § 1249 [a]). He says that, since this section of the Revenue Act operates wholly to extinguish the liability of the principal debtor, therefore no cause of action can exist against the surety.. It must be admitted that his argument appears at first to have considerable force. But, on further consideration, it becomes apparent that the liability referred to in this section must mean the liability for taxes imposed by the revenue law. This liability is the subject-matter of the statute. It does not arise from any voluntary act of the taxpayer but is created by the mere will of the sovereign expressed in legislation. Before the bond was executed it was the only obligation upon the taxpayer and if the taxpayer were not a party to the bond I would agree with the contention of the defendant. However, as soon as the bond was executed, the taxpayer assumed a second and entirely distinct obligation, and became subject to a new and entirely different kind of liability. There was a surety, but the taxpayer was the party primarily bound. The new liability was voluntary and contractual. It was in form a direct and primary obligation, not to pay a tax, but to pay the sum of $12,635, defeasible only upon payment by the taxpayer of a certain amount, to be fixed by subsequent action of the Commissioner. No limitation was put upon the time within which the Commissioner was required to act in fixing such sum. Inasmuch as the collector had the right to proceed immediately for the collection of the tax, it follows that he also had the right to require, as the price of forbearance from such action, a general promise to pay such amount as might be found due at any time, either before or after the expiration of the statutory period. This was unquestionably the intent and understanding of the parties. The taxpayer's promise is under seal, and in addition is based upon ample consideration. If the collector had proceeded by distraint, as he had the right to do, the taxpayer's only course would have been to pay the tax and then to have sued for a recovery of the money. The giving of the bond and the withholding of proceedings relieved him of that necessity. This view of the case makes it unnecessary to determine whether the giving of the bond, wholly relieving the taxpayer from his original tax liability, was in substitution for it, or whether two liabilities continued to subsist together, and, if so, whether the giving of the bond was a waiver of the limitation as to the original liability. These questions would arise if the collector were proceeding by distraint, or were otherwise pursuing a remedy given by the statute for the collection of taxes. So far as this suit is concerned, the expiration of the statutory period allowed for proceedings to collect tax does not constitute a defense. Demurrer is overruled, and defendants are directed to answer within 15 days. DAVIS et al. v. UNITED STATES. It is urged, however, on behalf of the de District Court, D. Maine, S. D. April 6, 1928. fendant, that as in this case the plaintiffs, No. 63. Executors and administrators 213-Executors could waive limitations as to claim for refund for overpayment of income tax by deceased. Executors of estate held to have right to waive statute of limitations relative to refund of overpayment in income tax by deceased, pursuant to statutory right granted by Congress, where in their judgment it seems proper and for the best interest of the estate to waive statute for purpose of collecting money due. At Law. Action by Walter G. Davis and others, individually, as legatees and as executors under the will of Mary H. Davis, deceased, against the United States. Judgment for plaintiffs. Bradley, Linnell & Jones, of Portland, Me., for plaintiffs. Frederick R. Dyer, U. S. Atty., of Portland, Me. PETERS, District Judge. This is an action by the plaintiffs individually as legatees of the late Mary H. Davis, and as executors of her will, to recover of the United States an overpayment in income tax for the year 1919, which overpayment is admitted to have been made, by the government officials, and the only question here is as to whether the plaintiffs have a right to collect and receive it. That right was originally questioned by the government on the ground that the executors had been discharged by the probate court in Maine under authority of which they were acting; but this contention appears no longer to be made, and has no foundation, for the reason that under the practice in Maine executors may continue after the settlement of their accounts and collect and distribute assets due the estate. as executors, made no claim for the refund until after the statutory period of limitations had expired, they cannot, as a matter of law, waive the statute after the bar has become complete. The waiver in this case was the usual one, signed by the Internal Revenue Bureau and the petitioners, and was simply taking advantage of the statutory opportunity offered in such a case to the estate to receive the money admittedly due it from the United States. Certain decisions in Maine and elsewhere are relied upon for the purpose of showing that an executor is held in Maine to have no legal authority to waive the statThere is no statute in Maine to that effect, ute of limitations after the time has expired. and the decisions in Maine are not very definite, and should be examined further with reference to the particular facts of each case, before I should be willing to accept them as binding here; but I feel certain that the executors here, without regard to the decisions in Maine, as to their authority to waive the statute in Maine, have a right to take advantage of the statutory right granted them by Congress, and that they cannot be interfered with if, in their judgment, it seems proper and for the best interest of the estate in their charge to waive the statute for the purpose of collecting the money due the estate. The reasoning in the case recently decided by the Court of Claims, referred to in the defendant's brief, of Aldridge, Executrix, v. United States, 64 Ct. Cl. 424, appears to me to be conclusive as well whether the waiver was before or after the statute of limitations had operated. I therefore find that the plaintiffs here are entitled to a refund of the amount claimed, $1,714.22, with interest. Judgment should be entered accordingly. 27 F.(2d) 631 BRANCHVILLE MOTOR CO. v. AMERICAN York. The defendant Grimes is a citizen of 1928. 1. Removal of causes 49(1)—Where pleadings set forth joint liability of defendants, one of whom is resident, no separable controversy Is presented. Where liability of defendants as set forth in pleadings is joint, or joint and several, there is no separable controversy, such as will authorize removal by some of defendants to federal court, where resident defendant is joined, provided joinder of resident defendant is not fraudulent. 2. Removal of causes 49(2)-Complaint against nonresident surety on fidelity bond, in which principal's resident employee, claimed to have assisted in defalcations, was joined, presented separable removable controversy as to surety. Complaint by corporation against foreign surety company on treasurer's fidelity bond, covering larceny or embezzlement, in which resident defendant, employed by principal, was joined for alleged wrongful acts in assisting principal to convert plaintiff's funds, did not show joint liability of defendants, but presented separable controversy, entitling surety to removal to fed eral court. 3. Removal of causes 49(1)-Action against one party on contract and another on tort is not joint, and does not involve joint liability. Action against one party on a contract and against another on a tort could not be deemed a joint action, and liability of defendants cannot be deemed joint. At Law. Action by the Branchville Motor Company against the American Surety Company of New York and another, removed from the state court. On plaintiff's motion to remand. Motion denied. South Carolina. The complaint sets forth in substance that one Carpenter was the treasurer and manager of the plaintiff, having control of its cash, etc., and that the said Carpenter is now without the jurisdiction of this court and is a citizen and resident of the state of North Carolina. The complaint further alleges that the surety company executed a bond to reimburse the plaintiff for all pecuniary loss sustained by the plaintiff of money, etc. (including that for which Carpenter was responsible), for any act or acts of larceny or embezzlement on the part of Carpenter, directly or with the connivance of others, while in the employ of plaintiff, and that the plaintiff sustained pecuniary loss of money in the possession of Carpenter, and for which he was responsible, by act of larceny or embezzlement on the part of Carpenter, directly or in connivance with others, while in the performance of the duties of his office. The complaint then further alleges that the defendant Grimes was employed by Carpenter as an employee of the plaintiff, and that Grimes handled and had control of the moneys, etc., and is jointly responsible for the plaintiff's loss. Carpenter is not made a party to the action for the reason that he is beyond the jurisdiction of the court. [1] The plaintiff contends that, where the liability of the defendants as set forth in the pleadings is joint, or joint and several, then the controversy is not separable, as a matter of law, and that the plaintiff's purpose in joining the resident defendant is immaterial; that the nonresident defendant has no right to say that an action shall be separable cannot deprive the plaintiff of the right to Kearse & Kearse, of Bamberg, S. C., for which the plaintiff elects to make joint, and plaintiff. Hyde, Mann & Figg, of Charleston, S. C., prosecute his own suit to final determination for defendants. ERNEST F. COCHRAN, District Judge. The plaintiff brought this case in the state court. The American Surety Company removed the same to this court, and the plaintiff has now made a motion to remand. The surety company maintains that there is a separable controversy between it and the plaintiff, with which the defendant Grimes has no connection, and to which he is not a necessary or even a proper party. The plaintiff contends that the complaint sets forth a joint cause of action against the two defendants. The plaintiff is a corporation under the laws of South Carolina, and the surety company is a corporation under the laws of New in his own way; that an action which might have been brought against many persons or against one or more of them, and which is brought in the state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants to the federal court, the cause of action being the subject-matter of the controversy, and that it is, for the purpose of suit, whatever the plaintiff declares it to be in his pleadings; that the filing of separate answers, tendering separate issues for trial by several defendants, sued jointly in the state court on a joint cause of action, does not divide the suit into separate controversies, so as to make it removable; and that a separate defense may defeat a joint recovery, but cannot deprive the plaintiff of his right |