fee simple, including all the right, title, and interest of both said lessors and said lessee, and free from the claims of all the parties to said suit.

Further answering, said Vos avers that at the time said deed was made by said Loth to said Robb and Strong, trustees, and said lease by them back to him, the transaction was understood and intended to be in fact a mortgage to secure an investment then made of $10,000 by said trustees for the purpose of furnishing an income to the said Ellen W. and Mary Robb; that, at the same time, it was understood and agreed between said trustees and said Kebler and said Kebler & Roelker that the said Kebler should have entire charge of said investment and collection of said rent or interest, and pay same directly to said Ellen W. and Mary Robb, with full authority to act for said trustees in carrying out said trust in all matters required for the protection and collection of said interest and principal; and, in pursuance thereof, that he did, with the knowledge and consent of said trustees, collect interest on said $10,000, paid as rent from February 5, 1885, down to November 1, 1887, and paid the same over to said Ellen W. and Mary Robb, and that he had also paid over to the said Ellen W. Robb and Mary Robb a portion of said sum of $11,361.66, but how much. exactly, he could not state.

And, further answering, said Vos avers that any alleged want of authority on the part of said Kebler or Kebler & Roelker to do any and all of the acts by him or said firm done and in said bill mentioned was supplied and all such acts purporting to be done on behalf of said complainants were ratified by them as follows: Said complainants, on March 2, 1888, in the court of common pleas of Hamilton county, Ohio, in the case of William J. Coppock, Adm'r, v. John Kebler et al., No. 79,812, on the docket of said court, voluntarily entered their appearance and filed their answer and cross petition; and again, on April 10, 1888, in the same court, in the case of William J. Coppock, Adm'r, v. John Kebler et al., No. 79,902, on the docket of said court, said complainants having, on cross petition of Frederick G. Roelker, been made parties defendant in said cases, voluntarily entered their appearance, and filed their answer and cross petition in each of said cases, being in the same language, and in each case averring that said Charles A. Kebler, for his firm of Kebler & Roelker, had entered the appearance of said Robb and Strong, trustees, in said action in the bill mentioned, brought by said Gugenheim, and had filed an answer therein on their behalf; and that on May 11, 1887, said firm of Kebler & Roelker had been dissolved, and had been succeeded by the firm of Kebler, Roelker & Jelke, composed of said Kebler and Roelker and Ferdinand Jelke, Jr.; and that thereafter all steps taken in said cause on behalf of said Robb and Strong, trustees, were taken by |

gaid new firm; and that in the case afore said, brought by said Gugenheim, the prem ises in the said bill herein described had, pursuant to decree made therein, been sold by George Sidney Tyler, special master commissioner appointed by the court for that purpose, free from the claims of said Robb and Strong, trustees, and all other persons whomsoever; averring, further, that the decree had been made in said cause on May 19, 18S7, whereby it was ordered, adjudged, and decreed that said special master commissioner should pay to said Robb and Strong, trustees, or their counsel, Kebler, Roelker & Jelke, out of the proceeds of said sale, the sum of $11,361.65; and further averring that said sum had been by said special master commissioner, on June 16, 1887, duly paid to said firm, but no portion thereof had by said firm been paid or accounted for to said Robb and Strong, trustees; and further averring that on November 23, 1887, said Charles A. Kebler had deceased, and that said Roelker & Jelke were the surviving partners of said firm of Kebler, Roelker & Jelke; and praying that said Jelke might be made party defendant to said causes; and that it might be adjudged that said Robb and Strong, trustees, were creditors of said firm of Kebler, Roelker & Jelke; and that the property in the petition and cross petition of said Roelker sought to be sold might be sold; and that out of the proceeds thereof said sum of $11,361.65, with interest from June 16, 1887, might be paid to said Robb and Strong, trustees; and that said. Robb and Strong, trustees, might recover judgment against said Roelker & Jelke, as surviving partners of said Kebler, Roelker & Jelke, for said sum and interest.

And, further answering, said Vos avers that said answers and cross petitions were sworn to by the said James Hampden Robb, and were signed and filed by the duly-authorized attorneys of the said Robb and Strong, trus tees; that the same remained on file in said cases until May 16, 1888, when, said cases having in the meantime been consolidated (April 21, 1888; Record, p. 164), said Robb and Strong, trustees, filed a demurrer to said cross petition of Frederick G. Roelker, on the ground that they had been improperly Joined as defendants thereto, and thereafter, until May 28, 18S8, when said demurrer was sustained, and said Robb and Strong, trustees, were dismissed from said cases. A copy of said answers and cross petitions was filed with the answer of said defendant William Stix to said bill, to which copy the said Vos makes reference, and incorporates said copy in this, his answer, as part thereof.

Said Vos further avers 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 on 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, denies; and thereupon said Vos prays 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. 4,148 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 has had possession thereof ever since, and has expended a large amount of money thereon in repairs and permanent improvements, which he is 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. 4,182), 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 is made to the certi fied 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. 4,182, and the same incorporated therein.

Vos prays that in the event it be found by the court that the said acts done by said Kebler or Kebler & Roelker or Kebler, Roelker & Jelke were unauthorized by, and not ratified by, and not binding on, said Robb and Strong, trustees, and the said judg ments, 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 shall be decreed that the deed and lease aforesaid constituted only a mortgage to secure to said Robband 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 may 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 may be so found he hereby offers and agrees to pay as said circuit court shall direct.

On December 21, 1888, said Robb and Strong, trustees, filed their general replica tion to the answer of said Vos in No. 4,148.

On February 16, 1889, said Robb and Strong, trustees, filed their answer to the said cross bill of August Vos, in which they deny 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 Gagenheim Case; and they deny that any of the acts of said Kebler or Kebler & Roelker or Kebler, Roel ker & 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 convey. ance 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 deny any authority on the part of said Kebler or Kebler & Roelker to col lect said rent, or to act for them in the collection of said interest or principal; and they deny 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 cross petition.

Edward Colston, Judson Harmon, and George Hoadly, Jr., for appellants. A. B. Huston, for appellee Vos. Gustavus H. Waed, for appellee Stix.

* Mr. Justice SHIRAS, after stating the facts* in the foregoing language, delivered the opinion of the court.

As the proceedings in the Gugenheim Case were regular upon their face, and extrinsic evidence was required to show their invalidity, we think a court of equity was the proper tribunal to afford effectual relief. Slater v. Maxwell, 6 Wall. 268; Cocks v. Izard, 7 Wall. 559; Oelichs v. Spain, 15 Wall. 228; Freem. Judgm. §§ 499, 500.

Nor do we think that the contention that for the circuit court of the United States to grant such relief would be to interfere with the jurisdiction of the state court is well founded. Pennoyer v. Neff, 95 U. S. 714; Johnson v. Waters, 111 U. S. 640, 4 Sup. Ct.

619; Arrowsmith v. Gleason, 129 U. S. 86, 9 Sup. Ct. 237.

• Whether the presumption, in favor of in nocent third parties, that Kebler had authority to enter an appearance for Robb and Strong, trustees, and to receive the proceeds of the sale, was sufficiently overcome by the evidence in this case, we need not consider, because we agree with the conclusion of the court below that the acts of Kebler, whether done with or without authority, were subsequently adopted and ratified by the complain.

ants.

That the course of Robb and Strong in voluntarily appearing in the case of Coppock v. Kebler, and filing an answer and cross petition therein, whereby they sought to appropriate to themselves the benefit of the mortgage given by Kebler, in June, 1887, to F. G. Roelker, would have been an adoption and ratification of the acts of Kebler done in their behalf, and would have estopped them, as against innocent third parties whose proceedings were or may have been influenced by such course, is clear, upon reason and authority, if Robb and Strong were acting in their own behalf. This course was deliberately chosen, after the lapse of several months from the death of Kebler, and with a full knowledge of all the facts. It does not appear that they acted under any mistake, nor that, when they afterwards dismissed their cross petition and resorted to the pres ent suit, they had acquired any additional information. The subsequent withdrawal of their answer and cross petition did not avail to put the parties in statu quo. Such withdrawal could not restore to the purchasers at the Gugenheim sale their lost opportunity to pursue Kebler's estate. Nor is it necessary that it should be made to appear, by evidence, that benefit would certainly have accrued to Vos and Stix from an attempt, if seasonably made, to secure indemnity from Kebler's estate. The right to seek such indemnity was a valuable one, and it is enough that it appears that Robb and Strong, by acquiescing in Kebler's acts, and resorting to legal proceedings against his administrator and partner, prevented Vos and Stix from promptly and perhaps successfully pursuing their remedies against the criminal's estate. Similar reasoning was applied by this court In the case of Bank v. Morgan, 117 U. S. 96, 114, 6 Sup. Ct. 657. "It was there held that a depositor, whose checks had been fraudulently raised by his clerk, lost his remedy against the bank by his delay and negligence in making known the facts to the bank, and thus giving it an opportunity to seek restitution from the wrongdoer, and the following language was used:

"Still further, if the depositor was guilty of negligence in not discovering and giving notice of the fraud of his clerk, then the bank was thereby prejudiced, because it was prevented from taking steps, by the arrest of the criminal, or by an attachment of his

property, or other form of proceeding, to compel restitution. It is not necessary that it should be made to appear, by evidence, that benefit would certainly have accrued to the bank from an attempt to secure payment from the criminal. Whether the depositor is to be held as having ratified what his clerk did, or to have adopted the checks paid by the bank and charged to him, cannot be made, in this action, to depend on a calculation whether the criminal had at the time the forgeries were committed, or subsequently, property sufficient to meet the demands of the bank. An inquiry as to the damages in money actually sustained by the bank by reason of the neglect of the depositor to give notice of the forgeries might be proper if this were an action by it to recover damages for a violation of his duty. But it is a suit by the depositor to falsify a stated account, to the injury of the bank, whose defense is that the depositor has by his conduct ratified or adopted the payment of the altered checks, and thereby induced it to forbear taking steps for its protection against the person committing the forgeries. As the right to seek and compel restoration and payment from the person committing the forgeries was in itself a valuable one, it is sufficient if it appears that the bank, by reason of the negligence of the depositor, was prevented from promptly, and, it may be, effectively, exercising it."

We do not deem it necessary to review the numerous cases, involving questions of election of remedy and ratification, cited on bohalf of the respective parties, but shall content ourselves with referring to two or three which satisfactorily illustrate the principles upon which we proceed.

Thompson v. Howard, 31 Mich. 309, was a case where a father had brought an action of assumpsit for a minor son's wages, and, after the jury disagreed, had discontinued the suit, and brought an action for the unlawful enticing away and harboring the son. The supreme court said:

"A party may not take contradictory positions; and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge or means of knowledge of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again. • The plaintiff's proceeding necessarily implied that the defendant had the young man's services during the time with the plaintiff's assent, and this was absolutely repugnant to the foundation of this suit, which is that the young man was drawn away and into defendant's service against the plaintiff's assent."

In Conrow v. Little, 115 N. Y. 387, 22 N. E. 346, at pages 393 and 394, 115 N. X., and page 347, 22 N. E., the court said:

"The contract between Branscom and the plaintiffs was, upon the discovery of Branscom's fraud, voidable at their election. As to him the plaintiffs could affirm or rescind it.

They could not do both, and there must be a time when their election should be considered final. We think that time was when they commenced an action for the sum due under the contract, and, in the course of its prosecution, applied for and obtained an attachment against the property of Branscom as their debtor. They then knew of the fraud practiced by him, and disclosed that knowledge in the affidavit on which the attachment was granted, and became entitled to that remedy, because it was made to appear that a cause of action existed in their favor by reason of 'a breach of contract to pay for goods and money loaned obtained by fraud.' The attachment was levied and the action pending when the present action, which repudiates the contract, and has no support except on the theory of its disaffirmance, was commenced. The two remedies are inconsistent. By one, the whole estate of the debtor is pursued in a summary manner, and payment of a debt sought to be enforced by execution; by the other, specific articles ́are demanded as the property of the plaintiff. One is to recover damages in respect of the breach of the contract, the other can be maintained only by showing that there was no contract. After choosing between these modes of proceeding, the plaintiffs no longer had an option. By bringing the first action, after knowledge of the fraud prac tised by Branscom, the plaintiffs waived the right to disaffirm the contract, and the defendants may justly hold them to their elecLion. The principles applied in Foundry Co. r. Hersee, 103 N. Y. 26, 9 N. E. 487, and Hays v. Midas, 104 N. Y. 602, 11 N. E. 141, require this construction; for the present contains the element lacking in those cases, viz. knowledge of the fraud practiced by the vendee, and, by reason of it, the plaintiffs were put to their election.

"It is not at all material to the question that the plaintiffs discontinued the first suit before bringing the present to trial; for it is the fact that the plaintiffs elected this remedy, and acted affirmatively upon that election, that determines the present issue. Taking any steps to enforce the contract was a conclusive election not to rescind it on account of anything known at the time. After that the option no longer existed, and it is of no consequence whether or not the plaintiffs made their choice effective."

In Butler v. Hildreth, 5 Metc. (Mass.) 49, it was held that "an assignee of an insolvent debtor," under the insolvent law of 1838, "may affirm a sale of goods made by such debtor for the purpose of delaying or defrauding his creditors, and receive the price of the goods from the vendee; and if such assignee, knowing all the facts of the case, brings an action against the vendee on a note given by

him for the price of the goods, and secures the demand by an attachment of his property, he thereby so far affirms the sale, and waives his right to disaffirm it, that he cannot, by discontinuing such action and demanding the goods, entitle himself to maintain an action of trover against the vendee on his refusal to return them."

At page 51 the court said: "It would, we think, be going too far to say that merely demand of the price would be deemed a waiver of his right to avoid the sale and claim the goods, because, in many cases, if the price could be obtained, it would be equally beneficial to the creditors, and he would have no further occasion to pursue the harsher remedy of impeaching the sale. But we think that if the assignee commences an action against the purchaser for the price, and causes his property to be attached to secure it, this is a significant act,-an unequivocal assertion that he does not impeach the sale, but by necessary implication affirms it. It is an act, too, deeply affecting the rights of the purchaser, whilst it is an assertion of his own; and, if done with a knowledge of all the facts which ought to influence him in his election, it is conclusive."

In Connihan v. Thompson, 111 Mass. 270, at page 272, the court said: "The defense of waiver by election arises where the remedies are inconsistent, as where one action is founded on an affirmance and the other upon the disaffirmance of a voidable contract or sale of property. In such cases, any decisive act of affirmance or disaffirmance, if done with knowledge of the facts, determines the legal rights of the parties, once for all. The institution of a suit is such a decisive act; and if its maintenance necessarily involves an election to affirm or disaffirm a voidable contract or sale, or to rescind one, it is generally held to be a conclusive waiver of inconsistent rights, and thus to defeat any action subsequently brought thereon."

The rule established by these cases is that any decisive act by a party, with knowledge of his rights and of the facts, determines his election in the case of inconsistent remedies, and that one of the most unequivocal methods of showing ratification of an agent's act is the bringing of an action based upon such an act.

We cannot accept the contention that Robb and Strong never had any legal standing in the Coppock Case, and that the filing of their answer and cross petition was merely a fortuitous circumstance, which did no injury to Vos and Stix. It is true that when the answer and cross petition were, by leave of court, withdrawn, the record did not of itself disclose any good reason for making them parties, and their demurrer was properly sus tained; but if they had stood upon their case, as set up in their answer and cross petition, it would seem that they would have been entitled to relief.

These views justify the decree of the court

below, unless the fact that Robb and Strong were trustees calls for a different conclusion.

It is claimed that the interest held by Robb and Strong in the lands embraced in the deed and lease between them and Loth was in the nature of an estate in realty, and that, as trustees, they could not themselves, nor by authority given to Kebler, have consented to the sale of such lands in the Gugenheim Case. If the nature of their tenure was, indeed, such that it could not be affected by the sale in the Gugenheim Case without their consent, and if, as trustees, they were disabled from consenting, it would seem to follow that the sale in that case was inefficacious, and that the remedy at law would be the sufficient and only one.

But our examination of the deed and lease, read in the light of the testimony of the parties, satisfies us that, as between Robb and Strong and Loth, the transaction was that of a loan of money secured by the covenants of the lease.

Moritz Loth testified in the present case that he regarded the transaction as a loan; and Robb and Strong, in the petition filed by them against Vos and Stix, alleged that "the said transactions between them and the said Moritz Loth were in truth and in fact a loan by them to the said Moritz Loth of the sum of $10,000, in consideration whereof the said Moritz Loth conveyed to them the premises hereinbefore described, and they executed to the said Loth the lease hereinbefore described, containing the privilege of purchase for the said sum of $10,000;" and they accordingly prayed that "their claim shall be declared to be a first and best lien on the premises, and that unless the defendants should pay them the said $10,000, with interest, the said land might be sold for the satisfaction of their claim."

It also appears that in the Gugenheim Case the petition averred that Robb and Strong, trustees, held the land only as security.

Accordingly, it would seem plain that the rights of Robb and Strong, trustees, were correctly asserted by Kebler in the answer and cross petition filed by him in the Gugenheim Case, and that, assuming that he was authorized to appear, the decree in that case, directing the lands to be sold, and awarding to Robb and Strong, trustees, the said sum of $10,000 and interest out of the proceeds, was fully warranted. It follows that by the payment into court of the amount of the principal and interest of the money found to be due to Robb and Strong, trustees, and by the conveyance to them by the master of the lands in question, in pursuance of the decree, the purchasers became vested with a feesimple title to said lands.

The decree of the court below is accordIngly affirmed.

Justices JACKSON and WHITE, not having heard the argument, took no part in the decision

(155 U. S. 86)

SIPPERLEY et al. v. SMITH et al.
(October 29, 1894.)
No. 688.

APPEAL-PARTIES-SEVERANCE.

An appeal from a judgment affirming a decree against defendants and interveners was taken by certain of the interveners. No application for summons and severance as to an intervener not appealing, or any equivalent therefor, nor any order permitting severance, appeared in the record; and no application was made for the issue of citation to defendants or leave to perfect the appeal as to them, and neither they nor such interveners appeared. Held, that the appeal should be dismissed. Masterson v. Herndon, 10 Wall. 416; Hardee v. Wilson, 146 U. S. 179, 13 Sup. Ct. 39; Inglehart v. Stansbury, 151 U. S. 68, 14 Sup. Ct. 237; and Davis v. Trust Co., 152 U. S. 590, 14 Sup. Ct. 693,-followed.

Appeal from the Supreme Court of the Territory of Utah.

A. F. Sipperley and H. S. Lee, composing a partnership under the firm name of A. F. Sipperley & Co., doing business in the city of Salt Lake, Utah, made an assignment of their partnership property to one Ross, in trust to convert the same into money, and pay creditors in the order named-First, M. J. Gray and the Union Bank of Greeley, Colo., in full; second, Mrs. A. F. Sipperley, Mrs. E. J. Walling, and H. A. Lee, certain individual indebtedness, in full; third, their remaining creditors. John O. Smith, George Whiting, Charles F. Conner, and George S. Smith, composing the firm of Smith, Connor & Co., brought suit against A. F. Sipperley and H. S. Lee in the district court for the third judicial district of Utah territory, and levied an attachment on the assigned property, upon the ground that Sipperley & Co. had disposed thereof with intent to defraud their creditors. Thereupon the preferred creditors, M. J. Gray, the Union Bank of Greeley, Colo., Mrs. Sipperley, Mrs. Walling, and H. A. Lee, flled an intervening complaint in said suit, praying for a receiver, and that the assignment be declared valid, and the indebtedness due them be ordered to be paid out of the proceeds of the property, and for general relief, which intervening complaint was answered by the original plaintiffs, who prayed therein that the assignment be adjudged fraudulent and void. The cause was tried by the district court of the third judicial district, a jury having been duly waived. The trial judge filed findings of fact and conclusions of law, and rendered judgment, adjudging the assignment fraudulent and void, dismissing the complaint of intervention, and directing the receiver (the assignee having in the meantime been appointed receiver) to pay plaintiffs in certain other suits consolidated with this and then these plaintiffs.

The title of the cause in the district court under which the findings of fact and conclusions of law appeared in the record, and also the judgment was as follows: "John O. Smith et al., Plaintiffs, v. A. F. Sipperley et