
    LATTA et al. v. GRANGER.
    (Circuit Court of Appeals, Eighth Circuit.
    May 6, 1895.)
    No. 446.
    1. Appeal — Decision and Mandate — Duty or Court Below — Accounting or Rents and Profits— Conflicting Evidence.
    One H. leased from plaintiff a, lot in the Hot Springs reservation, Ark., hut was subsequently ousted, by the United States under claim of superior title. He then leased the lot from the United States, and afterwards purchased it according to an award made by the commissioners appointed to adjust conflicting land claims in the reservation. Act March 3, 1877 (19 Stat. 377). Afterwards, plaintiff obtained a decree against H.’s grantees, declaring that they held the title in trust l'or Mm, and requiring conveyance thereof. On appeal, the supreme court confirmed plaintiff’s title, but reversed the decree because the account of rents and profits had not been properly stated, saying, in substance, that rents and profits should not be allowed prior to 1he commencement of the suit, and that no increased rent should be allowed on account of improvements. Held, that this decree merely directed the circuit court to ascertain the fair rental value, and plaintiff was not entitled to have the rents measured by the terms of the original lease from him to H.
    
      
      2. Same — Review—Conelictin® Evidence — Presumptions.
    Findings of fact by tbe tidal court upon conflicting evidence are presumptively correct, and will not be reversed when not unreasonable in themselves or not clearly in conflict with tbe preponderance of tbe evidence.
    Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.
    Tbe material facts out of which this suit arises are as follows: On June 26, 1875, tbe appellant’s testator, William H. Gaines, being in possession of lot sixteen (16) in block sixty-eight (68) of tbe city of Hot Springs, Ark., under a claim of ownership, leased tbe lot for one year, with tbe right of renewal from year to year, to Perry Huff. Huff occupied tbe lot under said lease until June 1, 1876, when tbe United States took possession of tbe lot as property belonging to tbe United States, ousted tbe then occupants, and subsequently leased the lot to Huff through tbe agency of a receiver appointed by tbe court of claims. On March 17, 1880, Huff sold all bis right, title, and interest in tbe lot to Yina Granger, tbe present appellee, and to Eva 51. James, the latter xiersons well knowing that all of Huff’s interest in tbe lot was derived from the aforesaid leases from Gaines and from tbe United States. Subsequently tbe commissioners appointed pursuant to tbe act of March 3, 1877 (19 Stat. 377, c. 108), to adjust conflicting claims to land situated within tbe Hot Springs reservation, awarded to Perry Huff tbe right to purchase tbe lot now in controversy, and tbe latter purchased the same, and received a patent therefor from tbe United States. After tbe decision in Rector v. Gibbon, 111 U. S. 276, 4 Sup. Ot. G05, to wit, on 5iay 23, 1884, this action was begun by tbe present appellants against Perry Huff, Eva M. James, and Vina Granger to compel them to transfer tbe legal title so as aforesaid acquired from the United States to tbe appellants, upon tbe ground that tbe legal title acquired by them from the government was held in trust for tbe appellants. A decree as prayed for was rendered by the circuit court against tbe appellee, Vina Granger, in April, 1887, tbe suit haviiig been theretofore discontinued as against Huff and James. From said decree an appeal was prosecuted to tbe supreme court of tbe United States by the appéllee. By the decision of tbe supreme court on such appeal the present appellants’ right to the lot in controversy was established and confirmed, but the decree in their favor was reversed, because tbe account as to rents and profits bad not been properly stated, and because the allowances in that behalf made were deemed inequitable. Tbe decision of the supreme court is reported under tbe title of Goode v. Gaines, 145 U. S. 141, 154, 12 Sup. Gt. 839. Tbe second trial of tbe case resulted in a decree against tbe appellants for 82,316.23, that being tbe sum which tbe master found bad been paid by tbe appellee, Vina Granger, for taxes and for improvements made on tbe lot, and in obtaining a title to tbe land from tbe United States, over and above the sum justly chargeable to her on account of rents and profits. From the last-mentioned decree the appellants have prosecuted an appeal to this court.
    U. M. Rose (W. E. Hemingway and C. B. Rose, on the brief), for appellants.
    John McClure, for appellee. ■
    Before SANBORN arid THAYER, Circuit Judges.
   THAYER, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The present appeal presents but two questions for our considera» tion. The first is whether the master should have computed the rents of the property in controversy at the rate specified in the lease from Caines to Huff of date June 26, 1875; and the second is. whether the sum allowed by the master on account of rents was too small, even though the aforesaid lease does not govern in de-terndning the rental value of the property. The appellants maintain the affirmative of both of these propositions.

It will be observed by reading the opinion rendered in this ease on the former appeal to the sui)reme court of the United States (vide Goode v. Gaines, 145 U. S. 141, 154, 12 Sup. Ct. 839), that the first decree was reversed because the allowance in favor of the present appellant s on account of rents was deemed excessive and inequitable, in view of the peculiar relations of the parties to the suit, and the cause was remanded to the circuit court solely for the purpose of having the rent account restated.,, The lease executed by Gaines in favor of Huff was described in the bill of complaint, and the terms and conditions (hereof, as well as the amount of rent therein reserved, could not have escaped judicial observation. Nevertheless, no direction was given to the circuit court to cause the rents on a second hearing to be computed at the rate reserved in the lease, nor was any intimation given to that effect. After pointing out the circumstances that had given rise to the litigation, and after alluding to the fact that the defendants had not acted knavishly or in bad faith, the supreme court said, in substance, that the defendants ought not to be charged with the rents prior to May 23, 1884, that being the date when the suit was instituted; that they should simply be charged with the rental value after that dale, and that “no increased rents should be allowed on account of the improvements.” If the court had intended that the rents should be computed at the rate fixed in the lease, and that the lease should control in estimating the rental value, it is obvious that the clause above quoted from the opinion would have been entirely unnecessary. We think, therefore, that the decision directed the circuit court, in effect, to ascertain the fair rental value of the lot without reference to the rent reserved in the original lease, and upon that theory (he circuit court evidently acted.

It may be well to observe, in support of the view which appears to have been taken by the supreme court, that, inasmuch as the ap-pellee, Yina Granger, bought the lot in controversy from Huff! in the year 1880, after the latter had been ousted of possession under the lease, and had attorned to the United Stales, the true owner, it is by no means apparent that any such privity existed between her .and the original lessor, Gaines, as would, in any event, render her amenable to the provisions of the lease and liable for the rent therein reserved. But, be this as it may, it was clearly the duty of the circuit court to follow the directions given by the supreme court in the opinion delivered on the first appeal, and, having done so, no error was committed of which the appellants can be heard to complain on the present appeal.

With respect to the second question above proposed, it is sufficient to say that the evidence contained in the record is not of such character as would warrant us in overruling the finding of the circuit court, and the.finding of the master as well, with respect to the rental value of the property in controversy. In Warren v. Burt, 12 U. S. App. 591, 600, 7 C. C. A. 105, 58 Fed. 101, this court said that where the trial court has considered conflicting evidence, and made its finding thereon, the finding must be taken as presumptively correct, and must be. permitted to stand, unless an obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence. To the same effect are the decisions in Tilghman v. Procter, 125 U. S. 136, 8 Sup. Ct. 894; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Donnell v. Insurance Co., 2 Sumn. 371, Fed. Cas. No. 3,987; Richards v. Todd, 127 Mass. 172. In the present case, we cannot say that the circuit court obviously erred in assessing the rental value of the property. The question was one with respect to which different minds might well entertain different views, and the testimony with respect to the rental value was conflicting. The conclusion reached by the circuit court is not in itself unreasonable, and is not clearly in conflict with the preponderance of evidence. It must, therefore, be allowed to stand. The decree of the circuit court is hereby affirmed.  