FEDERAL REPORTER I
the Greenville press, as to its want of power and capacity to compress cotton at the rate guarantied; but it is shown also that the demand at was for a compress that compress cotton bales much above tpe average weight,-some o(them funning over 75.0 pounds in weight. Manifestly the press wasllot adapted to cotton bales of such size and weight, ,and the parties took. that view of it themselves, and procureqfrom the appellee a heavier press of 1,500 tons' pressure, better adapted, to the size of the bales and the volume of business at that place. It is :olear from the testimony that the parties contemplated a comparatiy.ely light-made press, and it is vain and unreasonable to e:J(pect from such"a compress the service obtained from heavy presses of great power, costing two and a half ti,mes as much money. The evidence does not establi\'lh the alleged breach of warranty, nor does itestablish the bona fides of the claim for ,breach of warranty, but leaves it to the imputation that it was an after-thought. It follows that the judgmentap,d decree of the court below is affirmed, with costs; and it is so ordered. '
et ai. v.
(Oiroott Oourt, lV. D. Missouri, W. D.
ESTOvPEL lli PAIS-FALSE llEPRESENTATIONS-MORTGWES.
An own\lr of lands who induces his creditor to accept as security a mortgage thereon from a third person, by representing that the third person is the owner, is estoppeli the lands as against the lien of the mortgage. When a ni6rtga.ge shows on its face that the consideration moved from a certain person, and it appears that his as mortgagee was omitted by mistake, equity wilLretorm the instrument by inserting his name.
2,. EQUITy-RJ!lFORMATION OF INSTRUMENTS.
In Equity. ·Bill to reform and fpreclose a mortgage. lVater$ & Winslow, for. plaintiffs. Botsford & Williams, for defendants.
},JCCRARY,J. This cause has been argued and submitted for final decree upon the merits. The plaintiffs bring their suit in equity to reform and foreclose a mortgage. The following are the material facts established by ,the proof: (1) Defendant John L. Stone was indebted to plaintiffsin the sum of abont $1,600, part of which was his individual debt, and the balanCE;) was the debt of John L. Stone & Co. (2) This indebtedness was partially secured by collateral notes turned out by defendant(). (3) Plaintiffscalled upon said John L.J3tone for additional security, il.lld after some negotiation it was agreed that they were to have a mortgage on two tracts of land. (4) The defendant John L. Stone to the plaintiffs that one of the said tracts of land was defendants' property, and that the other tract was the property of his son Storie, and of record in his name. (5) upon
PARLIN V. STONE.
representations, the plaintiffs accepted two mortgages, one of which was executed by defendant John L. Stone, and the other by defendant Jeremiah Stone; the latter being the mortgage sued on in this case. (6) The representation of said John L. Stone, that the title to one of said tracts was in his son Jeremiah Stone, was not true in fact. The title to said tract was at the time in said John L. 'Stone, who had executed a deed to his son Jeremiah, which had never been delivered, and has never since been delivered, but has probably been destroyed. (7) In executing the mortgage sued on, the names of the plaintiffs; as mortgagees, were omitted by mistake. Upon consideration of these facts, and the law applicable ther.eto, I have reached the following conclusions: 1. That plaintiffs are entitled to decree reforming the mortgage sued on, by inserting the names of plaintiffs as mortgagees, in accordanae with the intention of the parties to the instrument. It is insisted by counsel for defendants that, inasmuch as DO grantee is named ·inthe mortgage, the instrument is void, and the defect cannot be cured :by parol evidence. This point is not well taken, since it 'appears upon the face of the mortgage itself that the consideration for the mortgage moved from the plaintiffs; that it was given to secure a debt due to them; and thatth'eornission to fill the blank left for the insertion of' the names ofthe grantees, with the names of plaintiffs. was a mere oversight. . " 2. Inasmuch as the John L. Stone, by his acts and representations, induced plaintiffs to believe that the Jandin controversy had been' conveyed to Jeremiah Stone, and inasmuch as, acting upon 'that belief, the plaintiffs extended the time for the payment of their debv, and took a mortgage upon said land executed by said Jeremiah Stone, to secure the same, John L. Stone is estopped to claim the land as against the lien of said mortgage. This, upon the doctrine of estoppel in pais. It would be a fraud upon the plaintiffs to permit said John L. Stone now -to deny what by previous declarations and conduct he asserted, when on the faith of his representations the plaintiffs have acted. A person having title to real estate, who represents another as the owner, and thereby induces a third party to accept from that other a conveyance by deed or mortgage for a valuable consideration, is in equity bound by such conveyance, and is not permitted to set up his own title against it. Rice v. Bunce, 49 Mo. 231; Story, Eq. Jur. § 385; Sweaney v. Mallory, 62 Mo. 485; Hart v. Giles, 67 Mo. 175. 3. Inasmuch as the plaintiffs have received and collected certain lateral notes assigned to them as security for this debt, an account should be taken before a master or otherwise, as the court may direct,to tain the sum due the plaintiffs, and decree should be rendered reforming the defective mortgage, and foreclosing the same as against all the defendants, including the said John L. Stone. The other named, who are subsequent purchasers. are clearly shown to haY8 purchased with notice of plaintiffs' e'luities. .
J'EDERAL REPORTER tV9l
(01lrcwU CWlrt, D. IO'Wa.
INF.llfCY"'-Al"otDAlfCII OJ' MORTGAGE-RIGHTS. OJ'
.suitto foreclose a mortgage glven by an infant the defense of tntancy personal to'the mortgagor. and cannot be set up by a subsequent llenholl1er.
In Equity. Bill to foreclose a mortgage. Brown & Dudley, for plaintiff. J. W. Rogers & Son, for defendants.
McCBARY, J., (orally.) ,ThIs is a bill to foreclose a mortgage executed by the defendant Rosier, to, the plaintiff to secure a promissory note. The defendant :Rosier.seE!ks to avoid the contract sued on by pleading his infanoy,at the time of its exe(}ution. The defendant, ,Davis holds So subsequent lien, on the. premises mortgaged, and he joins with Rosier in his 'lDsw6fj;andpleads the, infancy of 4is co-defendant, Rosier, .as a defense. To ·this al1swer,so far as Davis is concerned, the complainant but only excepts. The, contract ,oCan infant is not neces&arily, voidable, since the infant has snelection to avoid Hduring his, minority ,and affirm it after reaching his majority. The privilege of avoiding sl)d not absolutely his acts or contracts, when·they arevoi.d.able void, is paraonal to the infant, and one. which no one. can exercisefor him, except bis heirs or legal A person, not a party to the contrll<lt"cannot take advantage of the infancY !lftlle parties to it. It is a personal privilege. Schouler, porn. ReL(2d 535. I am oftheopiniQll that the defendant .Davis cannot .!let up as a defense the infatlcy of. ·the defendant Rosier. The exceptions to his answer are therefore sustained.
eARN IV. 'WESTERN UNION TEL.
(Oircutt Oourt rif·..t!ppea,Zs.Fifth .ctrcwl.t. December. 'l. 1891.)
,. anticipllting a heavy decllI18 in the market price of certain corporate ... stook; and desiring to speculate in the same by selling on the exchange before the '1dl!cliue. begllin, and thereafter: ,put:chasing a lower figure,. delivered to defendant telegraph company, in O'olumbus, Miss., a message to his bro'kersin New York city P' 'to'liell a certalti 'number of shares; The message was. not delivered to the brokers until eight days later, during wpich time the stock had dropped from $'l'S to $55 per abare. Plaintiff in fact hail no stock to sell, but kept with hill brokers securities, on the which tlrey would· have sold the stock on exchange, and bought ;.. or4El"'" in an action against the teleg,rsph company to recover the difference In price between the stock at the time the' message should have been delivered, and the time it actually' was delivered. that the were too remote, uncertain, and speculative, and there could be no recovery therefor. 46 Fed. Rep. 40, affirmed.
MESSAGll..,-MEABUBB OJ' DAMAGIIB.