HOVLAND v. SMITH, 22 F.2d 769

GILBERT, Circuit Judge (after stating the facts as above). The appellant assigns- error to the overruling of his objections to the confirmation of the sale. The first objection was that the court should have required the appellee to deposit in cash the amount necessary for the payment of the expenses of litigating a certain claim held by one Fox against the partnership and of settling the claim, if it should be adjudged valid.

The decree had directed that the proceeds of the sale be applied, first, to the payment of costs and expenses, and, second, to the payment of the expense of litigating the claim of Fox and settling the same, if adjudged valid. But the decree also gave to the appellee the right to use the bidding power of his judgment against the partnership in payment of the purchase price of the property, if he bid it in. This he did, but there was no money belonging to the partnership, and no fund in his hands which he could have devoted to the Fox litigation.

To protect the appellant, therefore, the court, before confirming the sale, ordered the appellee to file a bond in the sum of $40,000 as indemnity to appellant against the Fox claim, and the order was complied with. It was not the appellee’s fault that there were no funds to meet the Fox litigation, and there is nothing to show that the appellant was not amply protected by the bond.

To the contention that the court had lost jurisdiction to order the filing of the bond, it is a sufficient answer that the decree, by its express terms, had retained jurisdiction to make any further order necessary in or incident to the winding up of the affairs of the partnership. The second objection was that the master had permitted 13 shares of the 20 shares of the Warren Ranch to remain standing in the names of the appellant and the appellee, the effect being to discourage bidders and prevent the realization of a fair price on the sale of the stock.

The stock, however, was in the actual possession of the master, and so far as the record informs us no evidence was offered in the court below that, on account of the status of the stock, bidders were discouraged' or the realization of a fair price was prevented. The appellant relies on two affidavits, which in his brief he presents to this court; but they are not included in the bill of exceptions, and it must be presumed that they were not brought to the attention of the court below. Such being the ease, they have no place in a review of the judgment of that court. Southern Pac. Co. v.

Stephany, 255 F. 679; Atchison, T. & S. F. Ry. Co. v. Nichols, 2 F.(2d) 12. The third objection was that the interest of the Phelps-Dodge Corporation had not been cleared up, so as "to enable the master to pass a good title at the sale.

That interest arose in this way: At about the time of commencing the present suit, the appellee and his wife executed to the Phelps-Dodge Corporation a deed of certain mining claims, and to secure the grantee against any defect or failure of title, or liens or incumbrances thereon, they executed to the grantee an assignment of the appellee’s interest in the property and assets of Hovland & Smith.

In January, 1922, the appellant consented to the entry of an order in the court below confirming the sale of the mining claims to the Phelps-Dodge Corporation, thereby satisfying the purpose of the appellee’s assignment, and later, pending the advertisement of the sale of the partnership property, the appellee, obeying a suggestion of the court, obtained and filed with the clerk in the court below a disclaimer or reassignment from Phelps-Dodge Corporation to himself and his wife.

We find no merit in the contention that the reassignment is not sufficient, either for the reason that there was no evidence by whose authority it was filed, or that the corporation made no appearance by an attorney, or that the reassignment runs, not to Smith alone, but to Smith and his wife. No such objection was made in the lower court. Obviously the appellee’s wife' is named as a grantee in the reassignment for the natural reason that she joined as a grantor in the original assignment. We find no error. The order is affirmed.