solved by a legal surrender of its charter. A "corporation income and profits return for calendar year 1918," filed in May, 1919, contained the following:

"Corporation charter legally surrendered on February 22d, and business ceased to be operated as a corporation, and is now conducted as a partnership."

The tax shown by that return to be due was paid. Pursuant to a demand made in May, 1925, by the collector of internal revenue upon plaintiff for the sum of $19,321.84, based upon an assessment of $18,142.52 as an additional tax for the year 1918, made against plaintiff by the Commissioner of Internal Revenue in February, 1924, upon an audit and examination of said return filed in May, 1919, the plaintiff paid under protest said sum demanded. After plaintiff had unsuccessfully appealed to the Commissioner of Internal Revenue, and after the rejection on August 15, 1925, of its claim (made in May, 1925) for the refund of said amount paid under protest, the plaintiff brought this suit in January, 1926, for the recovery of the amount so paid under protest, with interest thereon. By written stipulation a jury was waived. The evidence without conflict showed the facts above stated. The claim for refund, in addition to a statement of facts above alleged, including a statement that plaintiff was not in existence during the year 1918, contained the following:

"No bill was rendered against Dreyfuss Dry Goods Company, Limited (the corporation). The appeal was denied, and now petitioner of this claim for refund, Dreyfuss Dry Goods Company (the partnership), is obliged to pay the tax in question, together with interest thereon, which payment is being made under protest, in order to prevent seizure and closing of its place of business, and eventual sale thereon by the collector of internal revenue, to pay a tax which it (the partnership) clearly does not owe, for it was not in existence during the year 1918, and there was no federal income or profits tax on partnerships, as such, for the year 1917. Therefore, the tax and interest in question being illegally collected from the partnership Dreyfuss Dry Goods Company, which amount it does not owe, but which it is being forced to pay under protest to prevent seizure and sale of its business and thus sustaining irreparable injury and embarrassment, the tax is paid, but same should be refunded as a tax illegally collected, for there was no partnership in existence in 1918, hence could owe no tax. The entire file already submitted to the Commissioner of Internal Revenue, through the Income Tax Unit, is hereby referred to and

made a part of this claim for refund by reference, in order to avoid needless repetition."

Judgment was rendered in favor of the defendant after the overruling of a motion, made by plaintiff upon the conclusion of the evidence, for judgment in its favor. [1, 2] By section 230 of the Revenue Act of 1918 (40 Stat. 1075 [Comp. St. § 63361⁄4nn]) a tax at a stated rate was imposed on the net income for the year 1918 of every corporation. By section 250 (d) of the Revenue Act of 1921 the amount of such taxes due under any return made under prior income tax acts shall be determined and assessed by the Commissioner of Internal Revenue within five years after the return was filed, and the taxpayer shall be notified thereof by notice sent by registered mail. 42 Stat. 264. Under the just cited provisions the Commissioner was not authorized to assess the corporation tax against any one other than a corporation upon which the statute imposed the tax. It is to be noted that the assessment of an additional tax, the demand of payment, and the payment under protest which are in question were made before the enactment of section 280 of the Revenue Act of 1926 (26 USCA § 1069), which for the first time authorized assessments of taxes against a transferee of the property of a taxpayer.

At the time of the occurrences in question the making, as provided in section 250 (d) of the Revenue Act of 1921, of an assessment of a deficiency tax against the taxpayer whose return was examined, not against some one other than the taxpayer, was a prerequisite to the validity of a tax in the amount of such deficiency. 37 Cyc. 987. As the plaintiff is not a corporation, and was not in existence in 1918, it was not subject to the tax in question, and an assessment thereof against it would be invalid. An assessment of the additional tax against plaintiff was unauthorized, in the absence of language clearly including plaintiff in the class upon which the tax was imposed or permitting the assessment thereof against one related to the taxpayer as plaintiff was. United States v. Merriam, 263 U. S. 179, 44 S. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547. [3, 4] An assessment of such tax against plaintiff cannot be justified by the fact that, if the tax had been assessed against a corporation upon which it was imposed, it could have been collected by suit against plaintiff, because of plaintiff's acquisition of the property of the corporation. Assuming that, because of the similarity in the respective names of appellant and the taxpayer, the abovementioned assessment of additional taxes properly may be regarded as one made

Bowers v. N. Y. & Albany Co., 273 U. S. 346, 47 S. Ct. 389, 71 L. Ed. 676.

We conclude that the court erred in overruling the above-mentioned motion made by plaintiff. Because of that error, the judgment is reversed, and the cause is remanded for a new trial. Reversed.

[5] Subject to prescribed conditions, a "suit for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected" is maintainable. 43 Stat. 253, § 1011 (26 USCA § 149; Comp. St. § 5944). The plaintiff did what was required to entitle it to sue for and recover the amount illegally collected from it as above stated. The plaintiff urged as one of the grounds of the alleged illegality of the collection complained of that no suit or proceeding for the collection from it of the additional tax assessed was begun within the time allowed by section 250 (d) of the Revenue Act of 1921, no such suit or proceeding against plaintiff having been begun until "after the expiration of five years after the date when such return was filed."

For defendant in error it was contended that the just stated ground of illegality could not be availed of by plaintiff because of its failure specifically to mention that ground in the space provided for a statement of the reasons for allowing a refund in the form for a claim for refund prescribed by article 1036 of Treasury Regulations No. 45 (1920 Ed.). It was plainly disclosed by plaintiff's claim for refund that a suit or proceeding for the collection of the additional tax was barred when the payment of it was exacted from plaintiff. As the claim for refund complained of the illegal collection from plaintiff of the amount paid under protest, and set forth "all facts relied on to support the claim," as required by the above-mentioned regulation, it cannot be supposed that the Commissioner was deceived or misled by a failure of the claim to mention a provision of law applicable to those facts. The claim for refund being sufficient to require a determination by the Commissioner of the question whether the collection complained of was or was not illegal, we do not think he could properly ignore a pertinent provision of law because it was not mentioned in the statement of the claim. Tucker v. Alexander, 48 S. Ct. 45, 72 L. Ed. (November 21, 1927);

SHOPS, Inc.

Circuit Court of Appeals, Sixth Circuit. February 10, 1928.

No. 4918.

1. Courts 406 (14)-Written findings, f sustained by any substantial evidence, are conclusive on appeal.

Circuit Court of Appeals must accept written findings of trial court as final and conclusive of the facts in controversy, if they are sustained by any substantial evidence. 2. Party walls 2-Wall erected on dividing line of premises by one landowner, which other landowner, paying half of cost, used for support for wall on new building, held party wall.

of property by one landowner under agreement that other was to pay one-half the cost when building on his premises should be enlarged or replaced, and before wall should be "used by reason of said enlargement or new erection," wall constituted party wall, where other owner, erected new building and, paying half of cost, used old wall for purpose of lateral and subjacent support for wall of new building contiguous to the old wall.

Where wall was erected on dividing line

3. Party walls 4 (3)-Where agreement for wall was not conditioned on a particular use, nature and extent of use were not required to be shown.

Where agreement for erection of party wall contained no condition specifying nature or extent of any particular use, it was not necessary

that nature or extent of particular use should be shown, in order to make it a party wall. 4. Party walls 8(5)-Removal of party wall, not made necessary by dilapidation, held to render landowner liable for damages resulting to owner of adjoining property on account of removal of support to adjacent wall.

Landowner, who removed party wall, thus rendering unsafe adjoining wall, which was dependent on party wall for lateral and subjacent support, held liable to owner of adjoining premises, not consenting to removal, for resulting damages, where demolition of building and removal of wall was not made necessary by reason of dilapidation or decay in the building. 5. Party walls 4(4)-Assertion of hostile claim of adverse title is indispensable to right in party wall by adverse possession or prescription.

In order that one landowner may acquire rights in party wall by adverse possession or

essary to constitute this structure a party wall was in fact made of it.

[4] 2. It is further urged by defendant that according to the law of Ohio, where the property in question is located, a proprietor of an interest in a party wall has the right under such circumstances as are here presented and even in the absence of decay or deterioration in the structure involved, to remove such wall without the consent of the other proprietor, and that the law of such state is, with respect to the subject-matter of this case, a rule of property which will be followed and enforced by the federal court in disposing of this controversy. Defendant does not deny, as apparently it cannot, that the law else where is clearly settled contrary to what it claims this Ohio rule to be. Carroll Blake Construction Co. v. Boyle, 140 Tenn. 166, 203 S. W. 945. In 20 Ruling Case Law, 1087, the well-settled general rule is thus stated:

"The authorities all agree that an easement in a party wall for the support continues as long as the wall is sufficient for the purpose for which it was designed and the respective buildings continue in a condition to need its support. It necessarily follows that neither party has any right to remove such support by pulling down the wall or removing it in whole or in part, except when its ruinous condition renders such action necessary, and anyone removing such support will be liable for resulting injuries to the other owner unless the latter has consented to such removal."

Defendant relies, in this connection, upon the decision in the case of Hieatt v. Morris, 10 Ohio St. 523, 78 Am. Dec. 280. That case did not involve a ruling to the effect that such party wall proprietor is entitled to remove, not only the portion of such wall standing upon his own land, but also that located upon adjoining premises, as was done in the instant case; but, even if that decision may be properly construed as having the extreme effect so claimed for it, we conclude that it must be, at least to that extent, considered as overruled by the later decision of the same court in the case of Miller v. Brown, 33 Ohio St. 547, in which, although the decision in Hieatt v. Morris, supra, was cited and urged by counsel, a conclusion was reached inconsistent therewith. We cannot, therefore, accept that early case as expressing the Ohio rule upon this subject or as preventing us from applying, as we do, to this case the general rule to which we have just referred. [5] 3. We find no merit in the suggestion that defendant acquired rights by adverse possession or prescription. There is nothing 24 F. (2d)-3

in the record to warrant any finding that defendant or any of its predecessors in title asserted, either for the necessary statutory period or indeed at any time, such hostile claim of adverse title or right as would be a necessary element on which to base the acquisition by defendant of such a title or right, even assuming that the other requisite elements thereof were present.

4. The contention of defendant that the trial court erred in awarding to the plaintiff damages for loss of profits is sufficiently answered and disposed of, adversely to the claim of defendant, by the observation that the record discloses substantial evidence in support of the finding of the District Court on that subject and that, therefore, such finding must be accepted by us as final and conclusive in this connection.

For the reasons stated, the judgment is affirmed, with costs.

Appeal from the District Court of the United States for the Western District of Texas; Charles A. Boynton, Judge.

H. W. Loeb and others, executors of the estate of John T. Milliken, deceased, appeal from an order entered against them and A. R. Ponder, receiver of the San Antonio, Uvalde & Gulf Railroad Company, on intervening petition of L. H. Upchurch and others. Affirmed.

Howard Templeton, of San Antonio, Tex. (S. J. Brooks and Templeton, Brooks, Napier & Brown, all of San Antonio, Tex., on the brief), for appellants.

Mason Williams, of San Antonio, Tex., for appellee Ponder.

E. J. Fountain, Jr., and W. L. Cook, both of Houston, Tex., for appellee San Antonio, Uvalde & Gulf R. Co.

Oscar M. Powell, of San Antonio, Tex.