In 27 Cyc. 833, 834, citing many cases, it is said:

"(a) In General. An action for money paid is maintainable in every case in which there has been a payment of money by plaintiff to a third party, at the request of defendant, express or implied, with an undertaking, express or implied, to repay the amount, and it is immaterial whether defendant is relieved from a liability by the payment or not. The request to pay and the payment according to it constitute the debt; and whether the request be direct, as where the party is expressly desired by defendant to pay, or indirect, where he is placed by him under a liability to pay, and does pay, makes no difference.

"(b) Payment for Self-Protection: (1) In General. Although no assumpsit will be raised by the mere voluntary payment of the debt of another person, yet if one person, in order to protect his own interests, pays a debt for which another is legally and personally liable, the law will imply an assumpsit on the part of the latter to the former. A request will be implied where the consideration consists in plaintiff's having been compelled to do that to which de fendant was legally compellable."

So where one person has paid the debt of another without request, express or implied, so that there is no obligation to repay, that other may subsequently ratify the payment, expressly or impliedly, and thereby become obligated to repay. 27 Cyc. 837, 838, and cases there cited.

In Oliphant v. Patterson, 56 Pa. 368, it was held that a subsequent recognition of the payment is equivalent to an express request. In 27 Сус. 837, 838, the rule is thus stated:

"An action for money paid does not lie except upon a previous request or a subsequent ratification on the part of defendant or his authorized agent. But where money or its equivalent has been paid for the use of another, the request or ratification may be either expressed or implied, and the request, as well as the promise, will be implied where the consideration consists in plaintiff's having been compelled to do that to which defendant was legally compellable, or where defendant has adopted and enjoyed the benefit of the payment. A request to one person to pay a sum of money will not authorize another, who advances the money, to recover it in an action for money paid brought in the name of the person to whom the request was made.

"(h) Voluntary Payment: (1) In General. A voluntary payment for the benefit of another gives the payer no right of action against the one for whose benefit the payment was made, unless he subsequently ratifies it."

I am satisfied under the evidence here that there was not only an implied request, but a subsequent ratification and approval, and an implied promise to repay.

As to the purchase of the Herald Times and the assumption of the indebtedness growing out of it, it is sufficient to say that there was no fraud or concealment, and the approval and assumption were by express resolution of the board of directors. Sackett had no private interests in any of these matters. In all that he did he was acting as the agent or representative of the stockholders, of which he was one. It was all done in their interest and for the benefit of the company, and not for personal gain or to serve some private interest or purpose. He was not trustee for the others, and they beneficiaries of the trust, where the trustee is forbidden to deal with the trust property, purchase it for his own benefit, or sell his own property to himself as trustee. But even in such cases the beneficiary may ratify and confirm on becoming competent so to do, as in cases of mental incompetency, infancy, etc. I think this case within Martin as Sheriff et al. v. Webb et al., Trustees, 110 U. S. 7, 3 Sup. Ct. 428, 28 L. Ed. 49, and Martin v. Niagara Falls P. M. Co. et al., 122 N. Y. 175, 25 N. E. 303. For years Sackett was permitted to carry on and conduct the business in the way he did without objection, and generally with the knowledge of the president, and when transactions were brought to the attention of the directors they were approved. I think the long period during which business was done in this way justifies the inference that Sackett was acting within his actual authority as was held in the cases cited. See Martin v. Niagara Falls, etc., 122 N. Y. 175, 25 Ν. Ε. 303.

Holding these views, after an examination of all the authorities cited by the contestants, and on a careful review of the voluminous exhibits and the evidence, I am of the opinion that the decision of the referee allowing the claim was right, and his order is approved and affirmed, and the claim allowed. There will be an order accordingly.

BRITISH & AMERICAN MORTGAGE CO., Limited, v. WORRILL

(Circuit Court, N. D. Georgia, W. D. February 20, 1909.)

1. DEEDS (§ 211*) - VALIDITY-MENTAL CAPACITY OF GRANTOB.

Evidence held insufficient to impeach a conveyance made in Georgia of land there situated, on the ground of the mental incapacity of the grantor, under the settled rule of the Supreme Court of that state that to constitute such incapacity as will avoid a contract there must be an entire loss of understanding.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 638-640; Dec. Dig. § 211.*]

2. EXECUTORS AND ADMINISTRATORS ($ 181*)-WIDOW'S ALLOWANCE.

Under Civ. Code Ga. 1895, § 2771, which provides that "whenever any person in this state conveys any real property by deed to secure any debt

* * and shall take a bond for titles back

*

*

*

*

*

*

*

upon the payment shall pass the title of said shall be fully paid, and shall

of such debt * * such conveyance property to the vendee till the debt be held by the courts of this state to be an absolute conveyance, with the right reserved by the vendor to have said property reconveyed to him upon the payment of the debt," the fact that the holder of such a conveyance brings suit to foreclose the same as a mortgage in a federal court, as he may do, does not change its character to that of a plain mortgage, which, under Code Ga. 1895, § 2725, is only a security and passes no title, so as to let in the claim of the widow of the grantor to an allowance for support out of the property, but such an allowance made in proceedings to which the grantee was not a party can apply only to the grantor's equity of redemption.

4. WITNESSES (§ 159*) - COMPETENCY - SUITS AGAINST PERSONAL REPRESENTATIVES OF DECEASED PERSON-TRANSACTION WITH DECEASED.

One who acted as agent for a borrower in procuring a loan is not thereby disqualified under the law of Georgia to testify as a witness for the lender as to transactions between himself and the borrower relating to the loan, in a suit to enforce payment against the borrower's executrix.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 664, 666-669, 671-682; Dec. Dig. § 159.*]

5. WITNESSES (§ 140*) -COMPETENCY-INTEREST.

Nor is he disqualified for interest because employed as attorney for the borrower in the suit, where it does not appear that his compensation is dependent on the result.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 598-618; Dec. Dig. § 140.*]

6. MORTGAGES (§ 581*) -FORECLOSURE BY SUIT-RIGHT TO ATTORNEY'S FEES.

A provision in promissory notes for the payment of attorney fees in case of collection by suit, valid under Laws Ga. 1900, p. 53, is enforceable although the holder brings a suit in equity to foreclose a mortgage securing the notes, instead of suing thereon at law, the attorney's fees being a part of the debt secured.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1670; Dec. Dig. § 581.*]

In Equity.

Wimbish, Watkins & Ellis, for complainant.
Olin J. Wimberley, for defendant.

NEWMAN, District Judge. This bill is brought by the complainant, the British & American Mortgage Company Limited, a foreign corporation, against Mrs. Carrie H. Worrill, guardian, and, by virtue of her office, administratrix on the estate of Bedford H. Worrill, deceased. Some preliminary questions of jurisdiction having been settled in this case, it was referred to Henry R. Goetchius, Esq., standing master at Columbus. There was a hearing before him, and his report filed. Exceptions to the report have now been heard and considered.

The bill was filed to foreclose as a mortgage a paper executed by Bedford H. Worrill in his lifetime. The paper was a deed to a tract of land in Stewart county, Ga., executed in pursuance of Civ. Code Ga. 1895, § 2771, upon the execution of which deed a bond for title was given to B. H. Worrill to reconvey the land upon the payment of a debt of $6,500, which the deed secured. The date of this transaction was November 30, 1903. In December, 1904, B. H. Worrill was adjudged a lunatic, and his wife, the said Mrs. Carrie H. Worrill, was appointed his guardian. Bedford H. Worrill died November 22, 1905, and, in accordance with the statutes of Georgia, Mrs. Carrie H. Worrill, by virtue of her office as guardian, became administratrix on her husband's estate. After the death of her husband, on February 5, 1906, Mrs. Carrie H. Worrill applied for a year's support, and the same was set apart for her in the lands conveyed to complainant, with the rents and profits thereof, and certain personal property.

Two main defenses are interposed in this case: The first is that, at the time the deed to secure the debt to the British & American Mortgage Company was made, B. H. Worrill was an insane person and incapable

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

of contracting. The second defense is that Mrs. Carrie H. Worrill's rights are superior to the rights of the British & American Mortgage Company, in view of the fact that all the property covered by the deed to the mortgage company has been set apart to her as a year's support.

On the question as to B. H. Worrill's sanity at the time the contract was made on November 30, 1903, the master heard a large amount of testimony, and discusses it extensively in his report. Some of the testimony heard by the master was professional testimony, but the greater part of it related to the acts and conduct of B. H. Worrill during the year 1903, and some of it for a short period prior to that time. The master says in his report:

"The main issue of fact in this case is whether or not Bedford H. Worrill, at the time this deed and these notes were executed by him, and this transaction as to the loan was consummated, was of sufficient mental capacity to enter into and understand his contract and undertaking. It is not denied that in January, 1905, his wife, the respondent, was appointed guardian, and duly qualified as such, of his person and property, after proper proceedings begun in December, 1904, in the court of ordinary of Stewart county, Ga. this appointment being made on the verdict of a jury that he was a person imbecile from infirmity and incompetent thereby to manage his property. He departed this life November 22, 1905, when about 56 years of age, and his wife, by virtue of her office as guardian, became administratrix of his estate. The evidence shows that he was afflicted with a disease known as 'progressive paresis,' and that this disease is insidious in its character, the symptoms being hardly perceptible in the incipiency, but more plainly marked as the disease progresses, the period varying, but averaging from three to five years. The testimony submitted on this issue was voluminous, and there was a very large number of witnesses introduced by both sides, there being 19 for complainant and 18 for respondent."

After discussing the testimony of the various witnesses which dealt with the question in the manner just stated, the master concludes his report on this part of the case as follows:

"Taking the entire and immense volume of evidence, very nearly all of which was submitted pro and con on the question of Worrill's capacity to contract, and reconciling the differences and conflicts as best I could, I have concluded that Bedford H. Worrill, up to the first part of the year 1903, was free from the disease which finally caused his death; that, if it existed prior to that time, its symptoms were not apparent; that possibly during 1903 these symptoms began to be apparent to the extent of accentuating his peculiarities, which had been more or less apparent prior to that time, but that he was fully competent to transact business during the year 1903, and for some time in 1904; that he felt somewhat financially embarrassed as far back as 1898, when he first applied for what was designated as the 'Hancock loan'; that the procurement of this loan and failure to pay the same, the failure of successive crops (he being engaged in farming), the expenditure of money for improvements on his place, the expense of maintaining a son at school and other demands, all coupled with a declining capacity to manage, which doubtless grew upon him in these later years because of the incipient and unknown progress of the disease, made it necessary for him to readjust his finances. This he began to attempt to do as early as the spring of 1903, and finally accomplished it at the date of this completed loan from complainant November 30 to December 19, 1903, the last date being the final balance to him of the money procured. Pending these transactions, and for several months in the year 1904, he managed his business as formerly, and performed the usual public service of a citizen, and for that purpose his mind was practically in a normal state. The paresis, which the evidence shows progresses by slow but by sure stages, did not appear to undermine his mental faculties entirely until the close of 1904. He was without question fully capacitated to make a legal and binding contract from November 30 to December 19, 1903, and was competent to understand and comprehend the purport of his dealings with complainant and the contract into which he entered. I therefore find that on said dates he was mentally capacitated to make this contract and understand the full purport of his acts in executing and delivering this deed and the notes secured thereby, and in receiving the money paid as a loan to him by complainant in consideration of said deed and notes, and that he fully understood and directed the distribution of the proceeds of the loan."

The master in the latter part of his report adopts the rule announced by the Supreme Court of Georgia in Maddox v. Simmons, 31 Ga. 512, as to the degree of mental capacity necessary to make a valid and binding contract. In the opinion in that case by Judge Lumpkin, on this question, it is said:

"I assume, in the first place, that, to establish incapacity in a grantor, he must be shown to have been at the time non compos mentis, in the legal acceptance of that term; which means, not a partial, but an entire, loss of understanding. The common law has not drawn any discriminating line by which to determine how great must be the imbecility of mind to render a contract void, or how much intellect must remain to uphold it. Weakness of understanding is not, of itself, any objection to the validity of a contract. If a man be legally compos mentis, he is the disposer of his own property, and his will stands, for the reason of his actions. Jackson ex dem. Cadwell v. King, 4 Cow. (N. Y.) 207, 15 Am. Dec. 354; Odell v. Buck, 21 Wend. (N. Y.) 142; Stewart v. Lispenard, 26 Wend. (N. Y.) 298 et seq.; Clark v. Fisher, 1 Paige (N. Y.) 171, 19 Ám. Dec. 402; Blanchard v. Nestle, 3 Denio (N. Y.) 37: Osterhout v. Shoemaker, Id., note; Dean's Med. Jur. 555 et seq.; 2 Mad. Ch. Pr. et seq.

"To establish any other standard of intellect or information beyond the possession of reason, in its lowest degree, as in itself essential to legal capacity, would, as said by Senator Verplanck, in the great case already cited (Stewart's Ex'rs v. Lispenard, 26 Wend. [N. Y.] 255), create endless uncertainty, difficulty, and litigation; would shake the security of property, and wrest from the aged and infirm that authority over their earnings and savings which is often their best security against injury and neglect. If you throw aside the old commonlaw test of capacity, then proofs of wild speculation or of extravagant and peculiar opinions, or the forgetfulness or prejudice of old age, might be sufficient to shake the fairest conveyance, or impeach the most equitable will. The law, therefore, in fixing the standard of positive legal competency, has taken a low standard of capacity; but it is a clear and definite one, and therefore wise and safe. It holds, in the language of a late English commentator (Shelford on Lunacy, p. 39), that weak minds differ from strong ones only in the extent and power of their faculties; but unless they betray a total want of understanding, or idiocy, or delusion, they cannot properly be considered unsound."

The rule thus laid down has been approved in a number of cases by the Supreme Court of the state of Georgia, the last case being Barlow v. Strange, 120 Ga. 1015-1018, 48 S. E. 344, 345, in which it is said: "In Maddox v. Simmons, 31 Ga. 512, 527, Judge Lumpkin used this language: I assume, in the first place, that, to establish incapacity in a grantor, he must be shown to have been at the time non compos mentis, in the legal acceptation of that term, which means, not a partial, but an entire, loss of understanding.' The rule thus laid down has been approved in two cases. See Nance v. Stockburger, 111 Ga. 821, 36 S. E. 100, and cit. There is no conflict between this rule and the one laid down in Frizzell v. Reed. Both recognize that, in order to avoid a contract on account of mental incapacity, there must be an entire loss of understanding. The first case recognizes it in terms, and the second in effect. For one who has not strength of mind and reason equal to a clear and full understanding of his act in making a contract is one who is afflicted with an entire loss of understanding."

This being a Georgia contract, and the lands conveyed to secure the debt being Georgia land, the law of the state must, of course, prevail,