1. Where all the facts essential to plaintiff's cause of action appear in the writings set forth in its statement, the omission to set out in full other papers referred to in the statement is not fatal to plaintiff's right to recover.

2. Where the affidavit of defense in such case denies no part of the statement except the inferences from the face of such papers, it raises no issue of fact, and the case is for the court to decide on the statement and affidavit.

3. In an action between two claimants of money due on account of a loss by fire, it appeared that, in consideration of $20,000, plaintiff conveyed the insured premises to defendant, and took back a lease for one year, at a rental of $1; that defendant gave plaintiff an option to repurchase at the end of the year for $20,000 and stipulated interest; that, at the end of the term, plaintiff paid the interest, and the arrangement was renewed for another year; and that the latter remained in possession all the time, and had the premises insured pursuant to the contract, for defendant's benefit. After the fire, which occurred during the second year, plaintiff paid the $20,000 and interest, and the latter reconveyed the premises. Held that, at the time of the fire, defendant held only the legal title in fee, subject to the equitable interest in plaintiff, and that, on the exercise of the latter's option to repurchase, its interest related back to the beginning of the transaction, and entitled it to the insurance money.

Appeal from court of common pleas, Lackawanna county; F. W. Gunster, Judge.

Action between the People's Street-Railway Company of Luzerne county, as plaintiff, and A. D. Spencer, as defendant, to determine their rights as claimants to certain money deposited by a fire insurance company in payment of a loss by fire. From a judgment for plaintiff for want of sufficient affidavit of defense, defendant appeals. Affirmed.

The plaintiff, on 18th November, 1889, owned the lot and barn insured, and conveyed it to Spencer, the defendant, for $20,000, which deed was recorded. The same day, a lease, with the option to purchase for $20,000 and interest, was executed and delivered; hence no change of possession took place. At the end of the year the plaintiff paid $1,200, the interest on the consideration money, viz. $20,000. The lease, rental $1 per annum, and option, $20,000 and interest, was renewed at the end of the year. The option was exclusive, in consideration of $1, made to the company, its successors and assigns. The lease and option was duly recorded in Deed Book 76, p.. 373, of Lackawanna county, on the day of its execution, November 18, 1890, and on the day of the renewal of the lease and option, and on the day of the payment of $1,200, interest money mentioned in the option. The plaintiffs kept the premises insured for v.27A.no.2-8

$12,000, and paid the premium. The insurance was made on the following terms: "The People's Street-Railway Company, as owners or lessees, $12,000. On their brick and frame ironclad building, including permanent fixtures, slate and metal roof, situate on the southerly side of Linden street, Scranton, Pa., occupied as a car stable, repair shop, and office. The interest of the assured in the above-described building is the right of purchase from A. D. Spencer, owner, and, in case of loss, the insurance is payable to him, as his interest may appear under said contract." On the 1st of May, 1891, and during the term covered by the second lease, the building on the property was entirely destroyed by fire. Proceedings were at once commenced to obtain the insurance. Mr. Spencer refused to go on with the proofs of loss in the matter until some agreement could be made to protect his rights. Then an agreement was made between them. The money was deposited

as stipulated in the agreement, and this suit was brought, as required by the terms of the agreement. Some weeks after the fire, and pending the proceedings above set out, the plaintiffs notified the defendant that, under the right given them in their option, they had decided to purchase the property, and demanding a conveyance to them. The property was conveyed, and the purchase money paid to the defendant.

H. W. Palmer and H. M. Hannah, for appellant. Jessups & Hand, Alfred Hand, and Wm. J. Hand, for appellee.

MITCHELL, J. All the facts appear in the writings set forth in the plaintiff's statement. None of the papers which are merely referred to, but not set out in full, seem to be essential to the cause of action, and the omission to give them in full is not therefore fatal. The affidavit of defense raises no issue of fact, for it denies no part of the statement, except the inferences from the face of the papers. The case was therefore one for the court to decide upon the statement and affidavit. All the writings constitute parts of one transaction, and the nature of that, beyond question, was a conveyance of the land as security for the repayment of a loan of money. It starts with admitted title in the company, (appellee;) then a conveyance to appellant for $20,000; a contemporaneous lease from appellant back to the company, at a nominal rent of $1, with no change of possession, which remained all the time in the company; and an absolute and exclusive option in favor of the company to repurchase at the end of the year for the same amount,-$20,000,with interest; that is, to resume its original title on payment of the loan. At the end of the term the arrangement was extended, or renewed for another year, during which the option was exercised by the company, the money paid, and the title reconveyed

The

Ap

by the appellant. It is unimportant what name we apply to the relation of the parties during the year. Whether technically vendor and vendee, mortgagor and mortgagee, or lessor and lessee, is immaterial. nature of the relation is incontestable. pellant was the holder of the legal title, subject to an equity in the company. It is strongly argued for appellant that his interest at the time of the fire was an absolute fee-simple title. But this is an error. It was not absolute. It was the legal title in fee, but subject to the equitable interest of the company,-an interest in the land, capable of being specifically enforced, and good, not only against the appellant, but all others, creditors, purchasers or strangers, to whom the recorded deeds and the company's possession gave notice.

The only substantial question in the case is the date at which the company's equity became complete. The fire took place during the running of the term. The option to redeem was exercised after the fire had occurred. Did the company's interest begin to run only from the exercise of its option, or did it, upon that event, relate back for all purposes to the beginning of the transaction? We are of opinion that both principle and authority sustain the latter view. As already said, the transaction was in substance a loan of money, and appellant's right was to have his money back with interest at a specified time, or, in default of that, to have his title become absolute. The insurance was for his protection, not to increase his profit; to keep up the sufficiency of his security while the loan lasted, or make good the value of his purchase if it became absolute. For that reason it was to be kept up by the appellee. If the latter had exercised its option before the fire, there could have been no question that the insurance money would have belonged to it. But the date of the fire makes no substantial difference when, as was the case, the appellee elected to repay the loan, and resumed its title. On the happening of that contingency, the appellant got his money, with interest, which was all he was entitled to; while the appellee got back its land, lessened in value by the fire, but the loss compensated by the insurance money. The insurance was, in contemplation of law, for the benefit of whomever should be entitled when the option was exercised or expired by default, and, in fact, it was contracted for "as interest may appear." It stood in place of so much of the property as was destroyed by the fire, and followed the title when the equitable and legal interests united. The authorities, so far as we have any analogous cases, lead to the same conclusion. It was held in Kerr v. Day, 14 Pa. St. 112, that an option to purchase is a substantial interest in land, which may be conveyed to a vendee; and the English chancery cases were reviewed

by Bell, J., with the result that, "when the lessee made his option to purchase, he was to be considered as the owner ab initio. Indeed, the determination can only be supported by attributing to the lessee an equitable estate in the land, under his covenant for an optional purchase, which passed to his alienee, vesting him with the right to call for a specific execution on declaring his election." And in Frick's Appeal, 101 Pa. St. 485, where the land was sold upon a prior judgment before payment or conveyance, it was held that the surplus was the property of the optional vendee. It is true that the option in that case had been exercised before the levy and sale, but that circumstance was not of controlling weight, as the decision was put on the ground that "in equity the vendee became the owner, subject to the payment of the price stipulated. His right of property therein flows from the contract, and exists before any purchase money may have been paid;" citing Siter's Appeal, 26 Pa. St. 178. We are of opinion that, upon the exercise of its option to redeem, the appellee's equitable title reverted back to the date of the original agreement, and appellee became the owner of the land as it was at such date, or of the insurance money which stood pro tanto in its place. Judgment affirmed.

(156 Pa. St. 91)

DOLPH v. HAD et al. (Supreme Court of Pennsylvania. July 19, 1893.)

INFANTS-CONVEYANCES-RATIFICATION.

Where an infant, for 18 years after conveying land, and 15 years after coming of age, lives near the land, retaining the consideration therefor, with the fullest knowledge of the voidable character of the deed, of the erection of improvements on the land, and of its steady increase in value, without any disaffirmance of his deed, such a delay will be held unreasonable, amounting to a waiver of his right, and equivalent to an express ratification. Appeal from court of Lackawanna county.

common pleas,

Ejectment by James M. Dolph against Isaac P. Hand and others. Judgment for Reversed. plaintiff. Defendants appeal.

H. W. Palmer and Chas. H. Welles, for appellants. S. B. Price and W. W. Lathrope, for appellee.

WILLIAMS, J. This case presents an interesting question upon a state of facts that I do not remember to have met with in any decided case. The facts are fortunately free from controversy, so that their legal effect is the only question to be determined. It appears from an examination of the evidence that Alexander Dolph was at the time of his death, in 1860, the owner of a tract of land lying in what is now Lackawanna county, containing 70 acres. He died intestate, leaving eight children to survive

him. Edward, one of his sons, administered on the estate. In 1864, before the final settlement of the estate, Alfred, another son, died, leaving five children surviving, of whom the plaintiff in this action is one. Some years later, Edward undertook to unite in himself the shares of all the heirs at law of his father in this tract of land, by purchase. He agreed upon terms with all his brothers and sisters, and with the heirs at law of his deceased brother, Alfred. He paid $1,600 for the undivided one-eighth part of Alfred, which was subdivided among his five children. A deed was made to him, in which they joined; James M. Dolph, the plaintiff, being at the time under the age of 21 years. This deed was acknowledged and delivered on the 29th day of December, 1869. The justice of the peace who took the acknowledgment of the several grantors incorporated into his certificate the following statement in regard to James: "The said James M. Dolph, being a minor, acts with his own will and accord, and agrees to ratify the same when he shall become of full age." James was at the time between 17 and 18 years of age, and reached his majority in August, 1874. This suit was brought to the November term, 1888, without any notice or act of disaffirm

ance.

If

Upon these conceded facts, ought the plaintiff to recover? Whatever may have been held in earlier times, or in other jurisdictions, in regard to sales and conveyances by a minor, we understand the fair effect of our own cases to be as follows: The deed of James M. Dolph, executed in his minority, did not bind him, if, upon coming of age, he decided to disaffirm it. He could affirm or disaffirm at the proper time. His deed was therefore not void, but voidable, and the right to avoid it was personal to himself. This right ought, in justice to all the parties, and as a matter of public policy, to be exercised within a reasonable time, or be treated as lost by waiver. one who has this right to elect does not exercise it within a reasonable time, but, with full knowledge of his privilege, omits or neglects to assert it, his omission may fairly be regarded as the equivalent of an act of affirmance, and as amounting, in fact and in law, to ratification. Our cases hold that a voidable deed may be ratified in many ways. It may be done by express words, as by a deed of ratification, a release, a declaration made to one about to become a purchaser, or the like. It may be done by implication from the acts or declarations of the grantor, showing a recognition in fact by him of the validity of the title, and an acquiescence in his previous act of conveyance. It may be done by a neglect to disaffirm, continued for such a length of time, and under such circumstances, as to make it inequitable for him to be allowed to disturb the title. The de

fendant in this case does not allege an express ratification, but concedes that no such ratification has been made. He sets up no such acts or declarations relating to the land, or the title thereto, as might be equivalent to an express ratification. What he asserts is that the voidable deed has been ratified by an implication fairly arising from the conduct of the grantor, extending through such a period of time, and having such an unequivocal significance, as to make it as effectual as express words could be. The circumstances relied on to support this contention may be stated thus: (a) Knowledge on the part of the grantor that his deed was voidable, and could be affirmed or disaffirmed on reaching full age; (b) continued residence near, and most of the time in full view of, the property, and the improvements made upon it; (c) his knowledge of the use of the tract for mining purposes during all these years, and of the erection of coal breakers and other improvements thereon by owners and lessees; (d) his failure to disaffirm when he knew his right to do so fully vested on his arrival at full age; (e) the continued omission for 15 years after coming of age, with a full knowledge of all the circumstances affecting the property, to assert his right to disaffirm.

The case of Urban v. Grimes, 2 Grant Cas. 96, comes nearer, to this, upon its facts, than any case in our Reports. In that case there had been a conveyance during the minority of the grantor, and a delay for 14 years to disaffirm; and it was held, upon the facts of that case, that the delay did not amount to an affirmance. The authority of Urban v. Grimes was recognized in Lenhart v. Ream, 74 Pa. St. 59, but the case went off on another question, raised under the statute of limitations. Soulier v. Kern, 69 Pa. St. 16, which was cited on the argument, did not involve a question of ratification. The title of the minor waз saved in that case by the proviso to the act of April 16, 1840, (P. L. p. 413,) which made the sale of the property of the minor for taxes irregular and ineffectual. What shall amount to a ratification of a voidable instrument generally? is a question that has arisen quite frequently. Thus, it has been held that the receipt of rent falling due upon a lease, which the minor might have avoided, when done with knowledge of the character of the lease, is sufficient to work a ratification of the lease. Myers v. Coal Co., 126 Pa. St. 582, 17 Atl. Rep. 891. But such an act will not operate as a ratification unless it is done with a knowledge of the instrument that may be affected by it. Zoebisch v. Rauch, 133 Pa. St. 532, 19 Atl. Rep. 415. Nor will ratification be implied from mere lapse of time, against an express refusal to ratify. Behn v. Molly, 133 Pa. St. 614, 19 Atl. Rep. 421, 562. The retention of a house or other article purchased by an agent amounts to a ratification of the

and, in granting the several extensions complained of, Clark & Co. simply obeyed the orders of the syndicate, and adopted the course which, in its judgment, was best for the interests of all concerned. In so doing, did they become liable to account to the appellant for his $5,000, with interest thereon from the date of the loan, or to a mandatory order to bring suit on the De Bertram note? If the liability to so account exists, is it enforceable in a court of equity? In considering these questions, it must be remembered that the first and principal contention of the appellant is that Clark and Co. were his agents for the collection of his share of the loan, and that their failure to collect it entitles him to a decree against them for the amount thereof. If it be conceded that the appellees were charged with the duty of collecting and paying to the appellant his share of the loan, at its maturity, and because of their neglect of that duty they are liable to him for such share, it is not a necessary or logical sequence that his remedy is not in a court of equity for an account. An action of assumpsit is well adapted to the enforcement of the liability in such case, and affords an appropriate and adequate remedy. A claim which, in effect, is merely for damages for breach of contract, cannot sustain a suit in equity for an accounting. Linn v. Gunn, 56 Mich. 447, 23 N. W. Rep. 84. And it is well settled that where the accounts are all on one side, and no discovery is sought, equity will not take jurisdiction. Gloninger v. Hazard, 42 Pa. St. 389; Passyunk Building Association's Appeal, 83 Pa. St. 441; Grubb's Appeal, 90 Pa. St. 228; and Railroad Co. v. Gourley, 99 Pa. St. 171. We think it is clear that a bill in equity will not lie to compel the appellees to pay to the appellant his share of the loan, or the damages, if any, he has sustained in consequence of their failure to institute proceedings for this collection.

Does the bill present a case for an order on Clark & Co. to bring suit on the De Ber

tram note? The members of the syndicate are joint owners of the note, and it is the primary security for the loan. The appellant, having less than an eighteenth interest in it, invokes the aid of a court of equity

to defeat the action of his associates, and

bility as preferable to the securities they hold for the syndicate, and as affording him adequate protection for his claim. The ground

of their alleged personal liability to the appellant is that it was their duty to take measures for the collection of the loan at its maturity, and that the action of the other members of the syndicate in reference to the extension was no justification or excuse for their failure to do so. As we have already seen, if this contention is well founded, he has an adequate remedy in assumpsit for any loss he has sustained by their neglect, and, if it is not, the injunction prayed for should be refused, because the only basis for it is the alleged invalidity of the extensions. For the reasons above stated, we think the demurrer was properly sustained. Decree affirmed, and appeal dismissed, at the costs of the appellant.

(65 Vt. 510)

MCLELLAN v. WHITNEY. (Supreme Court of Vermont. Orleans. July 8, 1893.) LANDLORD AND TENANT-LEASE-TITLE TO CROPS.

A lease of a farm provided that the lessee should pay to the lessor, as rent, "the annual sum of one-half the income of said farm,' and that all grain raised on the farm should be fed out there, and what feed was bought should be paid for out of the undivided profits of the farm. Held, that the lease was not on the shares, but for an annual sum, and therefore the lessor had no title to the crop raised during the term.

Exceptions from Orleans county court; Ross, Chief Judge.

Action of trover by Charles McLellan against George S. Whitney to recover a certain quantity of oats. There was a judgment entered on the verdict of a jury in favor of plaintiff, and defendant excepted. Reversed.

The plaintiff was the owner of a farm which he had leased by written instrument to one Chamberlain. The oats in question only title to them was under the written were raised on this farm, and the plaintiff's

lease. The defendant offered to show that

he attached and sold the oats on an execution against Chamberlain, but the court excluded the evidence, under the defendant's exception, and directed a verdict for the agreed value. The material part of the lease, after the description, was as follows: "To have and to hold the aforesaid premises, with all the privileges and appurtenances thereof, to the said Asa A. Chamberlain, his executors, administrators, and assigns, from the 15th day of March, A. D. 1890, for and during the term of three years and next ensuing: provided, if said McLellan should wish to sell said premises, and the above parties could not agree, they are to leave it to men they may select to say how they shall settle, if before the expiration of this lease. In con