Opinion of the Court.

or offer them for sale; that the corporation defendant published and sold the books and was the only defendant which received any part of the profits arising from their sale; and that it was from the books of account of the corporation defendant that the account of profits was stated on which the decree for damages in the case was based. To support this view, the case of Elizabeth v. Nicholson Pavement Co., 97 U. S. 126, 139, 140, is cited to show that unless all of the defendants realize a profit from the infringement, a joint decree for the payment of such profits ought not to be entered against them; and that the defendants who did not participate in the profits realized ought not to be charged with any part of those profits. It is contended that while the defendants Donohue and Henneberry might have been called upon to account for the profits realized by them from manufacturing, or printing and binding the books complained of, no proof of such profits was offered, and, therefore, no decree for the payment of any profits could lawfully be entered against them. The decree sets forth that the $1092 is the amount of the profit shown by the proof to have been made by the defendants from the defendants' infringement.

To this view it is replied by the plaintiff that, as the defendants Donohue and Henneberry printed the books by contract with the corporation defendant, and as, under the copyright law, Rev. Stat. § 4964, both the printer and the publisher are equally liable to the owner of the copyright for an infringement, and as it is to be inferred that Donohue and Henneberry made a profit from printing the piratical books, they were, therefore, sharers in the profits realized from the sale of the books, and were participes criminis with the defendant corporation in the infringement; that the two sets of defendants together printed and published the books, and were practically partners in doing it, the corporation doing one part, and the other defendants the other part of the printing and publishing; and that all the parties concerned ought to be held to an account to the owner of the copyright in respect to the profits derived from the printing, publishing and selling, without all of which combined there

Opinion of the Court.

could have been no infringement. We think these views are sound.

(8) It is contended by the defendants that the decree ought to have been only for that proportion of the profits realized from the sale of the books, which was derived from the use of the matter which had been copied from the copyrighted books. But the report of the master, filed February 27, 1884, speaking of the books printed and published by the defendants, said that he found "that said works, though purporting to be edited and compiled by different persons, whose names appear therein, in one instance the title being partially changed and in others entirely so, are largely compilations of the recipes of the complainant, and that the matter and language of said books is the same as the complainant's in every substantial sense, but so distributed through said books of defendants as to become incorporated into those works, making it almost impossible to separate the one from the other."

The rule is well settled, that, although the entire copyrighted work be not copied in an infringement, but only portions thereof, if such portions are so intermingled with the rest of the piratical work that they cannot well be distinguished from it, the entire profits realized by the defendants will be given to the plaintiff. This was the rule laid down by this court in Callaghan v. Myers, 128 U. S. 617, 665, following Mawman v. Tegg, 2 Russell, 385, 391, and Elizabeth v. Nicholson Pavement Co., 97 U. S. 126, 139.

We have thus reviewed the points urged in the brief of the appellant, and do not deem it necessary to consider any others.

Decree affirmed.

Statement of the Case.

SMITH v. GALE.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

DAKOTA.

No. 225. Argued March 23, 24, 1892. - Decided April 11, 1892.

The right to intervene in a cause, conferred by secs. 89, 90 of the Dakota Code of Civil Procedure upon a person interested in the subject of a litigation, relates to an immediate and direct interest by which the intervenor may either gain or lose by the direct legal operation and effect of the judgment, and can only be exercised by leave of the court, in the exercise of its discretion; and if the request to intervene is made for the first time in a case which had been pending. for two years, and just as it is about to be tried, it is a reasonable exercise of that discretion to refuse the request.

Since the enactment of the act of January 6, 1873, (Laws of Dakota Territory, 1872-73, pp. 63, 64,) a deed of land within Dakota executed and acknowledged without the State before a notary public having an official seal, and certified by him under his hand and official seal, is sufficient to admit the deed to record and in evidence, without further proof; and the fact that the recording officer in making the record of the deed fails to place upon the record a note of the official seal, does not affect the admissibility of the original.

When the defendant in his answer admits the execution of an instrument set up by the plaintiff in his declaration, and claims that it is invalid by reason of matters set forth in the answer, that instrument is admissible in evidence.

The finding, in a suit to quiet title, that the plaintiff and her grantees had been in continued possession of the premises from a given day is the finding of an ultimate fact, and the sufficiency of the evidence to support it cannot be considered on appeal.

Possession and cultivation of a portion of a tract under claim of ownership of all, is a constructive possession of all, if the remainder is not in adverse possession of another.

In Dakota a person purchasing real estate in litigation from the party in possession, in good faith and without knowledge or notice of the pendency of the litigation, may acquire a good title as against the other party if no lis pendens has been filed.

THIS was an action originally brought by Gale in the District Court of Minnehaha County, against the widow and heirs of Daniel G. Shillock, Samuel A. Bentley and Byron

Statement of the Case.

M. Smith, to quiet the title of the plaintiff to certain lands of which it was averred the defendants unjustly claimed to have title in fee.

The following facts are abstracted from the finding of the court:

Both parties claimed title from Margaret Frazier, who, on the 1st day of July, 1864, became grantee of the land in fee by a patent of the United States of that date.

Plaintiff's chain of title was as follows:

1. Power of attorney, Margaret Frazier to William H. Grant, executed December 9, 1868, authorizing him to sell and convey all her real estate in the Territory of Dakota, etc., and to execute a warranty deed of conveyance in her

name.

2. Warranty deed, Margaret Frazier by William H. Grant her attorney-in-fact, to Louisa E. Gale, wife of the plaintiff Artemas Gale, executed October 12, 1870, for a consideration of $160. Under this deed the court found that Mrs. Gale entered into possession; caused the property to be surveyed and the boundaries to be marked; and thence to the time of her decease, continued in open, continuous and uninterrupted possession, which possession was continued by Artemas Gale, her husband, and his grantees hereinafter mentioned, who have been, and at the time of the trial, were in actual possession of said premises.

3. Will of Louisa E. Gale, who died June 27, 1880, devising this property to her husband Artemas Gale, the plaintiff. This will was probated July 29, 1880, and filed for record July 5, 1883.

This suit was begun September 27, 1882. During its pendency, and on August 1, 1883, plaintiff Gale conveyed the lands in question to Helen G. McKennan by warranty deed for a valuable consideration, and on August 14, 1883, Helen G. McKennan conveyed an undivided half of the same to Melvin Grigsby.

The defendant's chain of title was as follows:

1. Warranty deed, Margaret Frazier to Oscar Hodgdon, dated May 29, 1872, for a consideration of $500. This deed

Statement of the Case.

was executed eighteen months after the deed to Louisa E. Gale. The court found that there was no other evidence offered or submitted, tending to prove that any consideration was paid for such transfer, or that the grantee Hodgdon did not then have actual notice or knowledge of the prior conveyance of Frazier to Gale, or that at the time Hodgdon was an innocent purchaser of the said property for a valuable consideration, without notice of the outstanding title in Louisa E. Gale.

2. Quit-claim deed by Oscar Hodgdon to defendant Byron M. Smith, executed June 20, 1874, the property being then in the actual and open possession of Louisa E. Gale.

3. Warranty deed, Margaret Frazier to Daniel G. Shillock and to Samuel A. Bentley, executed May 14, 1873. Subsequent to this conveyance Shillock died, leaving a widow and heirs, who, with Smith and Bentley, were made defendants.

It was claimed by defendants that the power of attorney from Frazier to Grant was obtained for the purpose of enabling the latter to locate land scrip owned by Frazier, and selling the land so located; that it was not intended to be used in conveying the land in question; that such use of it was fraudulent; and that Gale and his wife, well knowing these facts, procured Grant to make a deed, under and by virtue of said power of attorney, to Louisa E. Gale. In this connection, however, the court found that Mrs. Gale was an innocent purchaser for a valuable consideration of the property in controversy; that if said power of attorney was procured from Margaret Frazier by fraud, and if the conveyance by Grant to Gale was fraudulently made, the said Louisa E. Gale and Artemas Gale were neither of them cognizant of such facts, and had no knowledge or notice whatever of such alleged fraud; and that Helen G. McKennan was also an innocent purchaser for valuable consideration of said property, and, at the time of the conveyance from Artemas Gale to her, had no notice or knowledge whatever of the pendency of this action, or of the ground upon which Smith claimed an interest in the property.

Upon the day before the case was tried, Margaret Frazier