Statement of the Case.

reference and incorporates said copy in this his answer as part

thereof.

Said Vos further averred that at the time of swearing to said answers and cross-petitions and filing them, said Robb and Strong, trustees, had full knowledge of all things and acts done in their behalf by said Kebler, and Kebler & Roelker, and Kebler, Roelker & Jelke, and they deliberately adopted them as done on their behalf and ratified them, and supplied all lack of previous authority upon the part of said Kebler, and Kebler & Roelker, and Kebler, Roelker & Jelke, if any such there previously had been, which he, said Vos, denied. And thereupon said Vos prayed to be hence dismissed.

On the same day, December 8, 1888, the said August Vos filed in said Circuit Court and in said cause No. 4148 his cross-bill against the said James Hampden Robb and Charles E. Strong, trustees, William Stix and Moritz Loth, stating fully the facts alleged in said bill of Robb and Strong, trustees, which were admitted in his answer to said bill; also the facts set forth in his said answer; also averring that on May 24, 1887, he entered into possession of the premises so purchased and conveyed to him, and had had possession thereof ever since, and had expended a large amount of money thereon in repairs and permanent improvements, which he was ready to show to the court; also referring to the petition herein before mentioned, filed in a cause brought by said Robb and Strong, trustees, May 12, 1888, in the Superior Court of Cincinnati, No. 43,368, removed to said Circuit Court and then on the docket thereof, No. 4182, in which they averred that the said transactions between them and said Loth-the deed and lease

were in truth and in fact a loan by them to said Loth of $10,000, for which sum and interest thereon they had a first and best lien upon said premises. Reference was made to the certified copy of said petition contained in the transcript of the record in said case 43,368, Superior Court of Cincinnati, on file in said Circuit Court in said case No. 4182, and the same incorporated therein.

Vos prayed that, in the event it be found by the court that the said acts done by said Kebler, or Kebler & Roelker, or

Statement of the Case.

Kebler, Roelker & Jelke, were unauthorized by and not ratified by and not binding on said Robb and Strong, trustees, and the said judgments, orders, and decrees of said Court of Common Pleas void as to them, and that he acquired no title by his purchase and deed of the said real estate, it should be decreed that the deed and lease aforesaid constituted only a mortgage to secure to said Robb and Strong, trustees, the payment of said $10,000 and interest, and that an account be taken to ascertain what proportion of said sum and interest ought justly to be borne by him as chargeable against the land covered by said mortgage purchased by him, taking into account the payments which it might be found said Kebler, or Kebler & Roelker, or Kebler, Roelker & Jelke, had made on account of said interest and principal, or out of said sum of $11,361.65, to said Ellen W. Robb and Mary Robb, which proportionate sum that might be so found he thereby offered and agreed to pay as said Circuit Court should direct.

On December 21, 1888, said Robb and Strong, trustees, filed their general replication to the answer of said Vos in No.

4148.

On February 16, 1889, said Robb and Strong, trustees, filed their answer to the said cross-bill of August Vos, in which they denied that said Vos was an innocent purchaser for valuable consideration, without notice of the want of authority from the said Kebler, or Kebler & Roelker, or of the want of consent of said Robb and Strong, as trustees, to the decree of sale in the said Gugenheim case; and they denied that any of the acts of said Kebler, or Kebler & Roelker, or Kebler, Roelker & Jelke, had been ratified by any act of said Robb and Strong, as trustees. As to whether the said transaction, whereby the said Loth conveyed to them said property for $10,000, and they leased the same back to him, was a loan, and whether said conveyance should be regarded as a mortgage, and to be foreclosed as such, they left the same to the determination of the court upon the proof to be made by said August Vos of the allegations of his said cross-bill.

They also denied any authority on the part of said Kebler, or Kebler & Roelker, to collect said rent, or to act for them

VOL. CLV-3

Argument for Appellants.

in the collection of said interest or principal; and they denied that said Kebler collected any of the interest of said $10,000, and paid the same to Ellen W. Robb and Mary Robb, and if he did so, that he was authorized to collect the said principal. On February 23, 1889, said Vos filed a general replication to said answer of Robb and Strong, trustees, to his cross-bill. The defendant, William Stix, did not file any demurrer or special plea to said bill, but otherwise filed pleadings substantially the same as those filed by August Vos.

On the final hearing, November 26, 1889, upon the pleadings and evidence, the court found the equity of the case with the defendants, and that the complainants had ratified said Kebler's want of authority, and therefore decreed the dismissal of the bill; and also that the title of Vos should be quieted against the complainants, as prayed for in his crosspetition.

Mr. Edward Colston, (with whom were Mr. Judson Harmon and Mr. George Hoadly, Jr., on the brief,) for appellants, on the question of election and ratification said:

It is claimed that Robb and Strong, trustees, by filing an answer and cross-petition in the Coppock case, ratified Kebler's want of authority, and thereby made the title of Vos and Stix to the land in question good.

Ratification being thus asserted and denied, the question is, whether the mere fact that Robb and Strong, trustees, filed an answer and cross-petition in the Coppock case furnishes, under the circumstances, conclusive evidence that they did thereby elect to abandon their title, as trustees, to this land, and to adopt in lieu thereof the chance of recovering some, or it may be all, or it may be none, of the money from Kebler's assets or from Kebler's partners by means of the Coppock case. The court below decided in the affirmative and accordingly dismissed the bill on that ground.

We claim that there is in this record no evidence of an intelligent and intentional ratification of the acts of Kebler and of deliberate choice actually made to look solely to what

Argument for Appellants.

might be got out of the Coppock case. It is not pretended that there was any express ratification, and, therefore, if any ratification there was, it must be implied. This presents a question of fact, not of law. Ratification and election rest. upon intention. The answer and cross-petition of Robb and Strong, which is claimed to operate as a ratification, was not a suit begun by them, but only a pleading filed in an action in which they had been summoned as defendants, for a limited purpose, by the cross-petition of Frederick G. Roelker. Roelker did not claim it was necessary to bring in Robb and Strong, trustees, in order to determine the question whether

they had any claim upon "the subject-matter in this case."

The precise language of Roelker's cross-petition is that Robb and Strong, trustees, "are necessary parties to the determination of the right of plaintiff (Coppock) and of this defendant (Roelker) to the subject-matter of the litigation in this cause.” Roelker did not aver that Robb and Strong, trustees, had any claim to participate in his indemnity fund or that they had asserted a right to avail themselves thereof. He recog nized no rights of Robb and Strong in that fund nor to any relief in the case. Their presence was averred to be necessary only to determine rights between Coppock and him. Roelker acted on the idea that it was necessary to have Robb and Strong before the court to enable him to establish his lien upon the Kebler assets to an extent that would protect him against the Robb and Strong claim should they make it, and not in order to afford them an opportunity to assert any right of theirs. But in reality their presence was not necessary even for this purpose; and the court so decided, and they were dismissed. It is true that Robb and Strong, in their answer, overlooking the purpose for which they had been invoked into the case, did set up a claim to a personal judgment not only against Roelker, but against Jelke, the other partner, whom the answer of Robb and Strong prayed should be made a party. But Jelke was not made a party. It was, however, clearly not a case for a personal judgment against Roelker and Jelke, or either. Such cause of action would have been foreign to the case as affecting some and not all

Argument for Appellants.

the parties to the cause, and would have been contrary to the provisions of § 5020 Revised Statutes of Ohio, which requires that each cause of action shall affect all the parties to a case. It was proper, then, for these reasons, if for no other, that Robb and Strong should withdraw their answer and crosspetition, it being subject at any time before trial to be stricken from the files for non-conformity to that section or to a demurrer for the same reason. The result is the same as if no such answer had ever been filed by them.

But if any effect is to be given to the filing of this answer and cross-petition, no greater effect can be rightly claimed for it than would attach to it as the presentation of a claim to participate in a fund, the value of which the claimant knows nothing of; for anything more would have exceeded the limits of that case. The presentation of such a claim would not amount to an election even where it is filed voluntarily. So are all the authorities, particularly Morris v. Robinson, 3 B. & C. 196; Curtis v. Williamson, L. R. 10 Q. B. 57; Wells, Fargo & Co. v. Robinson, 13 California, 133. But the appearance of Robb and Strong in the Coppock case was not voluntary. Robb and Strong, although non-residents, were subject to constructive service by publication, and being thus compellable to appear, their appearance without waiting to be served by publication would have no different effect than if they had been served in that manner.

Our claim that there was no election on the part of Robb and Strong to ratify the acts of Kebler in consenting to the sale of the property as professed attorney for Robb and Strong, trustees, is placed upon the following grounds:

I. Robb and Strong, trustees, had no authority or power to ratify a transaction, the effect of which would be to divest them of their title as trustees to this property. They could not have conveyed this property in the first instance so as to divest their cestuis que trustent of their title; and a fortiori could not do so by ratification after the property had been sold and the proceeds thereof squandered. Stix and Vos derived notice of this want of power on the part of Robb and Strong from the conveyances and from the pleadings in the case.