teJidtoiijomore:than to ,refuM the injunction prayed for,but the dea$ entered; dismisses the bill upon its merits, which wouldprobably halVe the effect of preventing the company from hereafter assertingtheright to enter upon the land in 'any mode for the purpose of removing the coal therefrom. Sufficient appears upon the record to show that the complainant has some rights, under the 4eed to, the defendants, but the facts necessary to fully ascertain and adjudicate the extent of such rights are not made to appear. Thi8 court cannot, therefore, render a decree upon the merits; nor, on the . other hand, do we deem equitable to affirm a decree which in effect holds that the company has no right to enter ,upon the land in question, under any circumstances, or for any purpose. In our judgment, it would have been entirely proper for the circuit court to have refused to pass upon the case until evidence had been taken upon the matters in dispute, or, if that course was not deemed advisable, to have dismissed the bill, without prejudice to future proceedings in court, incase the parties could not agree upon their respective Under these circumstances, the lismisstng the bill of complaint will be affirmed, but with the modification that such dismissal shall be without prejudice to the right of the Union Pacific Railway Company to hereafter institute such proceed. ings at law or in equity as may be necessary for the ascertainment, protection, and enforcement of its rights in the land in question.
PEPPER v. TAYLOR et aL (Circuit Court ot Appeals, Sixth Circuit. No. 77.
February llS, 1893.)
The buyer ot a horse gave his notes, indorsed by a third person, tor the purchase price, but subsequently sent back the horse, with a notification that he rescinded the sale. The seller accepted and kept the horse, but did not return the nGtes, having already negotiated them. The holder of the notes subsequently sued the maker and indorser, and a compromIse judgment was entered, and paid, tor part of the a,mount, and all of the notes were surrendered. Held, that the seller, by receiving back the horse, became bound to return the notes, and. as he tailed to do so, he was liable to the maker and indorser for the sum they had paid thereon.
Appeal from the Circuit Court of the United States for the Distriot of Kentucky. In Equity. Bill by T. F. Taylor and W. M. Parrish against R. P. Pepper for the cancellation of certain promissory notes. Taylor had bought a horse from defendant, Pepper, and given his notes in pay· ment, secured by Parrish's indorsement. Subsequently, and before any of the notes fell due, Taylor, being about to fail in business, sent the horse back to Pepper, with a request to deliver up the notes. Pepper received back the horse, but did not return the notes, having already negotiated them. Subsequently Parrish and Taylor were sued by the holder of the notes, and a compromise judgment was entered, and paid, for the amount of two of the notes, and all of them were thereupon surrendered. The circuit court entered a de-
PEPPER II. TAYLOR.
cree in favor of the complainants for the amount which they had been compelled to pay upon the notes, and· from this decree defendant appealed. Affirmed.
The following opinion WllS deUvered by BARR, District Judge, ln the court bclow: · "If there WllS any ambiguity in Taylor's letter of February 3, 1889, or doubt as to his purpose in sending the horse, 'JUdge LIndsay,' to Mr. Pepper, that doUbt WlIS entirely removed by Taylor"s letter of FebI'UIl.l'Y 6, 1889. ThIs letter, according to Mr. Pepper's evidence, was received by him at the time he accepted the delivery' of the horse; and, according to Addison's statement, before he accepted the horse. It Is, we think, immateIial which statement is correct. In either event, Mr. Pepper, having full knowledge that a rescission of the purchllSe of the horse was intended when he accepted his delivery, Is bound, and became under a legal obligation, to return the notes of Taylor and Parrish, which had been given for the horse. "It appears from the evidence that one of these notes WlIS held by the Farmers' Bank. and the o1!her three by the Deposit Bank, at Frankfort, and Parrish was sued on the two first maturing, and judgment rendered against htm. This judgment WllS rendered in the state of Virginia, and a compromise entered into between the banks and Parrish, by which he paid $1,325, and the other two notes were surrendered to him. In view of this compromise, made, presumably, with the consent of Mr. Pepper, he is only liable to In· dE'mnlfy Parrish to the extent of the money thUl;l pai!}, 1. $500 and $825, with interest from the time of payment; that is, $500, with interest from the 2d of Decem,ber, 1889, and $825, with interest from the 1st day of Marck, 1890. '!'here Is no evidence of the amount of the cost paid by Parrish in the auit in Virginia, and therefore a decree will not go for this cost. "The suggestion. that Parrish subsequently sold the two notes surrendered to him, and may thus have fully indemnified himself for the money paid the banks, is not to be considered. There Is not an intimation anywhere ln this record that Mr. Pepper was bound on those notes, and all the presumptions are the other way. It would have been absurd for the Deposit Bank to surrender two notes of Taylor, Parrish, and Pepper,-one for $700 and one for $725,-in consideration of the payment of the other, for $675, of the same parties, by Parrish. Whatever may be the rights of Taylor, as against Parrish, because of the sale of these notes upon which he remained bound, is not before this court. That matter must be settled elsewhere. Mr. Pepper is entitled to the proceeds of the sale of the horse, 'Judge Lindsay,' and Parrish is entitlt;d to a decree against Pepper for $500, with interest from December 2, 1889, aod $825, with interest from March 1, 1890; and complainants are entitled to their costs In this suit. Let a decree go accordingly."
William Lindsay and Frank Chinn, for plaintiff in error. Wm. C. P. Breckinridge and John T. Shelby, for defendants in error. Before JACKSON and TAFT, Circuit Judges, and SAGE, District Judge. PER CURIAM. The decree of the lower court is affirmed on the grounds clearly stated by the judge who heard the cause, and dered said decree. The proof establishes that the appellant ao· cepted a return of the horse under such circumstances and conditions as to warrant the finding that he made his election to resci:td the contract of sale, and thereby became bound to indemnify the npI*'l· lees for what they had to pay on the notes, which the appellant should have canceled, surrendered, or taken up himself. The decree is affirmed, with costs. v.54F.no.1-3
IDNNE etaL T. WBBBet aL
(:. ; , , '
.Court . of 4pl,leals, Eighth Clreult. FebrUary 6,' 1893.)
. "".', ,': :1 . ·
No. 179. L
Where · party Is ,entitled ,to rescind a contract on the cround of fraud. i' I; he must. act,; promptly,! With np v:a<:lJlation. npunrelVlOnable dell1Y. no attempt to speculate npon Ws option. He must elect toresolnd, lUld proJi' need' as far 811 liesJ.n bis power to place h1.J:Uelf and hi' purchaser in statu
quo. ThIs Is· ,especially,: true as applied. to speoulatlve property which 'J,s'lial>le togreat1bletullt1on in value. Fed. Rep. 512,.ll1firmed.
where thethvner'&t'mtilfng propel'ty, thInkIng tluHJSme hIlS be<lO!lD$
'OJ!' UONTRACTS-,.UNRIri,ASONABLE DlIll;Ail!.
'eXhausted, sells it· fp ;Qrie 'wllo .practices notraud to· obtaln it, she cannot 'm.aIntaina bffi, to re!!cb;ldthe sal.e atter the lapse of seven years, andatter tw dlsooverY of adlHtl9nal' ores,-which' eDhance the valUe of the land ID8Il1 - ,d'" '.', : '
, .4- ted-era! Bboulllnot, at the 1J:lstance of a set aside a trans· fexr'ot persoIl,l!.I property by her husbllhd,toWsopUdre» by a former mar· betore his death, when, ,with tulUmowledge of the ,',fIWUl, she lui.l'i'rlilmained silent for· more than five years,' Which is sufficient uilde,r the MI,!iIS()uri s14tute,to bar llD,8.Ction to recover personal property.
portion of bts property , W bis cbUdren by a.' ,former wife, and such conveyance is not a fraud , upouthe second wife.
HUSBAND AND,WIFE---.A:NTENUPTIAL OONVEYANCE. ", ,! A, man about,toma.try may conv.ey 8i reasonable
"'Appeal from the ClreultCourt of the United States for the West· ern.J:)istrict of Missgurl.
9; '11. Dean, (LJ.
and O. O. Tichenor, on the brief,) for
<E. O. Brown, J. V. O. Karnes, 'and Daniel B. Holmes, on the brief,) for appellees. Before OALDWELL and SANBORN, Circuit Judges, and 8HIRAS, District Judge.
SANBORN, Circuit Judge. This is a bill in equity to rescind a l!lflle an.d avoid a deed made by the appellant Sarah M. Webb, now Sarah M. Kinne, April 24, 1883, of all her interest in the estate of her deceased husband, John C. Webb, to his children and devisees, Elijah T. Webb, Martha E. Hall, and Mary S. Burgner. The circuit ':ourtdismissed tM :bUl. " 49 Fed. Rep. 512. ' In March, 1877; trohn O. Webb resided in Webb City, Jasper gourity, Mo., and was the owner of about 1,000 acres of land in that ttounty, 1130 a.cresdfwhich was valuable mitieral land, from which lessees of his were miningzino· and lead. He was a widower, and hlld' the three children above named. He had conveyed to the defendautMattha E. Hall 20 acres of minel'alland, and on the 3d day ot March, 1877, he conveyed to the defendants Webb and Mary Burgner 40 acres of land of that character, in order that his gifts of hil!! three children might be equal; but this deed was not to