that some $30,000.00 of the purchase money, paid by the New York Biscuit Company, was actually accepted by the appellants. Other parts of such purchase money were invested and re-invested and turned over from time to time, so that the estate got the benefit of the interest. When Furlong was appointed receiver, the trustees, Bliss and Hanscom, under the direction of the court, conveyed and assigned to Furlong everything which they had in their hands belonging to the trust estate.

In view of what is stated above, it appears clearly that the appellants received, both through their trustees and by their own acts, the benefit of the purchase price, paid by the New York Biscuit Company for the quarter interest in the Carpenter block, and, therefore, they cannot come into court and ask for a re-conveyance of that property, alleging that the purchaser knew, when the purchase was made, that Bliss and Hanscom had no power of sale. If the appellants have the right to follow the land, they must tender back the purchase money. Otherwise, by keeping the money they affirm the sale. The law will not permit them to do both, and the election once made is binding and final. It appearing here that the appellants have accepted at least $30,000.00 worth of securities and land bought by the trustees with the money paid by the New York Biscuit Company, as shown by the accounts of the trustees, the master's report, and the decree and settlement in the accounting suit, they must be held at this time to have affirmed the sale made by their trustees. Under the circumstances, the appellants have exercised their election, and are estopped now by their acquiescence and ratification from proceeding against the land, purchased by the appellees in good faith. The doctrine above referred to is sustained by numerous authorities in this and other States. (Bonner v. Holland, 68 Ga. 718; Harris, Trustee, v. Collins, 75 id. 97; Equitable Life Ass. Society v. May, 82 id. 646; Carter v. Gibson, 61 Neb. 207; Smith v. Lusk, 119 Ala. 394; Marx v. Clisby, 130 id. 502; Creamer v. Holbrook, 99 id. 52; Knox v. Laird, 92 Ga. 123; Fowler v. Bowery

Savings Bank, 113 N. Y. 450; Cleland v. Casgrain, 92 Mich. 139; Crook v. Bank,83 Wis. 31; Penn v. Heisey, 19 Ill. 295).

It may be said that, under the proofs in this case, it is not established that the appellants have received the whole of the $50,000.00, less commissions, paid by the purchaser to the trustees. It is shown clearly by the proof that they have received in land and money upwards of $30,000.00 of the purchase money. The estoppel operates as well when the beneficiary accepts a part of the purchase money, as when he accepts the whole. In Knox v. Laird, 92 Ga. 123, it was said: "It is a principle of law too well settled to require discussion or citation of authority, that a devisee under a will cannot ratify in part, and in part repudiate, the alleged illegal sale of land by an executrix. In case such a sale should be set aside at all, the status of the parties, existing before the sale was made, would have to be restored, and this would be utterly impossible, if a part of the transaction were allowed to stand. It is incumbent upon parties, who have any reason to set aside a sale, to repudiate it altogether. No other course is consistent or practicable. By her solemn admission in judicio, as expressed in one of the amendments referred to, Mrs. Black assented to the receipt by the executrix of $850.00 of Blake's money in part payment of the land sold to him, and to the re-investment by the executrix of this sum in other lands. Mrs. Black thus conclusively and absolutely abandoned whatever right she may have had, if any, to set the sale aside. Having elected to ratify the sale and proceed against Knox for the balance of the purchase money alleged to be due by him, Blake's title is free from invalidity, and in no event could Mrs. Black now recover the land itself, or any portion thereof, from him."

Nor is the application of this principle of estoppel affected in any way by the fact, that the beneficiaries were minors. In Marx v. Clisby, 130 Ala. 502, it was said: "An infant may not create an estoppel; yet, under circumstances, the benefits of a particular transaction may have been so appropriated for his advantage that he will not be heard to

*

gainsay it. * **It is without dispute that the money borrowed and comprising the mortgage debt, was applied exclusively to the payment of the debts of the testatrix, which, of course, were a charge upon this lot, as well as upon the entire property of the trust estate belonging to these complainants, * and resulted in relieving the complainants' estate to the extent of the debts against it, paid out of the proceeds. * * * This being true, the complainants must be held to have received the benefit of the transaction. Having received it they are estopped to deny the validity of the sale and at the same time enjoy the benefits derived from the appropriation of the money borrowed from Hirsh, whose right to collect it was destroyed by his purchase at the foreclosure. * *They are estopped to deny the validity of the sale and at the same time enjoy the benefits derived from the appropriation of the purchase money. And this principle applies to minors, as well as adults."

In Penn v. Heisey, supra, where there was a sale by a guardian of property belonging to infant children, it was said (p. 297): "The proof also establishes the fact, that plaintiffs in error have received the full benefit of the tract of land so purchased for them by their guardian, and have actually sold it for a large sum of money, and the question arises, does not this, in equity, amount to an estoppel? Are not plaintiffs in error estopped from setting up title to this lot, when they have received and enjoyed the benefits of the proceeds of its sale, and it is now in the possession of an innocent purchaser without notice? It is a principle that, though in general, estoppels are odious, as preventing a party from stating the truth, yet they are favored when they promote equity. * * * The application of this principle does not depend, as we understand it, upon any supposed distinction between a void and voidable sale. If the sale be the one or the other, receiving the money or its proceeds in other valuable property with a knowledge of the facts, touches the conscience of the party, and therefore establishes the right of the party claiming under such sale, in one case as well as

in the other. The proof in this case shows that the plaintiffs knew all the facts respecting the sale of the lot by their guardian and the purchase and conveyance of other lands, out of the proceeds. An equitable estoppel prevents a party from using a title which, in good conscience, ought to inure to the use of another; and if such a case was ever presented, we think this one. Such estoppels are and should be favored in law, honor and conscience, for the truest and best of reasons, that a man having received a benefit in one character, the value of the thing, or of the property, shall not afterwards receive the thing or property itself, in the same or another character. This principle, so equitable and legal, runs throughout all the transactions and contracts of civilized life. Here the plaintiffs in error received the proceeds of the sale of this lot, a part in the nurture and education of the wife, and a part in eighty acres of land, which they have sold. * * * This principle of equitable estoppels of this character, applies to infants as well as adults; to insolvent sureties and guardians, as well as persons acting for themselves; and they have place, as well, when the proceeds arise from a sale by authority of law, as when they spring from the act of the party."

In the case at bar, the proof shows that the appellants in the accounting suit made an examination of the trustees' accounts, and knew all the facts surrounding the condition of the trust estate.

Counsel for appellants say that the proof upon this subject of ratification or acquiescence was improperly introduced because there was no allegation in the answer, under which such testimony was properly admissible. The answer, filed by the appellants, contained the following allegation: “And these defendants allege that said complainants have by their acts and conduct ratified and approved of the sales, so made by said trustees unto said Coffeen." We think that this allegation in the answer sufficiently indicated that the defendants below relied upon the defense of waiver, acquiescence and ratification.

It is said by appellants that the allegation was too general in its terms and amounted to a mere conclusion of law. It appears that no exception was made to the answer, but even if this criticism upon the allegation in the answer is correct, it is to be remembered that there is a distinction between estoppel by record or deed, commonly known as technical estoppel, and estoppel in pais, or equitable estoppel arising from act and conduct. The latter estoppel may be given in evidence under a plea of the general issue. Estoppel in pais may be specially pleaded, but it is not necessary, as evidence of estoppel in pais is admissible under the general issue. (8 Ency. of Pl. & Pr. p. 6; German Fire Ins. Co. v. Grunert, 112 Ill. 68; Mann v. Oberne, 15 Ill. App. 35; Welland Canal Co. v. Hathaway, 8 Wend. 483).

For the reasons above stated, we are of the opinion that the decree of the court below, dismissing the bill, was correct. Accordingly, the decree of the circuit court is affirmed. Decree affirmed.

HENDERSON WOODS

V.

ELLA DAILEY.

Opinion filed October 24, 1904.

1. DRAM-SHOPS-preponderance of evidence is sufficient to justify recovery of damages. A preponderance of the evidence is sufficient to justify a verdict for the plaintiff in a civil action under the Dram-shop act for injury to plaintiff's means of support in consequence of the death of her husband, caused by defendant's sale to him of intoxicating liquors.

2. EVIDENCE-what not undue restriction of cross-examination. Cross-examination intended to show use of intoxicating liquor by a witness as affecting his credibility is not unduly restricted by refusing to allow questions as to how many times he had taken the Keeley cure and "had snakes," where the witness has admitted that he had been drunk and had used intoxicating liquor.