901.29. The vice chancellor pertinently asks, "Whence came this $58,717.10 which he claims to have paid in excess of his receipts?" There is no possible answer to this question. The notion that the complainant derived any amount from a business carried on in New York city is without the least foundation. The simple statement of the totals on the respective sides of this account displays its utter unreliability. I do not believe that its defects are the result of an intentional falsification of the accounts by the complainant. It is difficult, under the best couditions, to keep itemized entries of each detailed receipt, and its source; of each disbursement, whether large or small,-in a business of any magnitude, for any considerable period. When, therefore, it is recalled that this account extends over a period of 25 years; that the accounts were stated more than 30 years after the first item; and when consideration is had of the free and careless manner in which the family lived together so many years, and in which money was obviously received and paid, it is not strange that the diffi. culty in the way of an accounting exists. From a careful examination of the accounts, I am satisfied that the complainant must have failed to make charges even in his own favor, in some instances. I am equally satisfied that the charges on the other side of the account are quite as inaccurate in detail, and much more so in result. Instead of the disbursements during this long period to the four children, and for the legitimate expenses of managing the estate, having been in excess of the receipts from legitimate sources, I think that exactly the reverse is true. I am convinced that a part of the money received from the mortgages and sales made by the parties at different times went to relieve pecuniary embarrassments arising in the management of the business. Aside from these general conclusions, it is impossible to arrive at any result from an inspection of the account and the record now before us, nor is there the faintest prospect of any better result, should the matters be again referred to a master. It is obvious that all the books and memoranda in the possession of the parties have been presented. These items have been intelligently examined and tabulated up to the year 1857, by Mr. Fernald, an expert accountant. The latter items, up to 1877, are stated and tabulated by counsel in Schedule A. The inherent difficulty is this: that, having once discredited the result of the footing to so great an amount as $58,717.10, there remains no clue, either in the accounts themselves or in the explanatory testimony, by which a master could arrive at any definite-or could, indeed, approximate to any definite-balance between the parties. For this reason the refusal to order an accounting was right.

But the vice chancellor concluded that the deed made by the complainant in 1862 ought to be canceled. He admits that he cannot arrive at the conclusion that the brothers and sister owe James R. Morgan as much as James R. Morgan owes them. But the conclusion to cancel the deed is rested upon the ground that the

defendants should have filed an account, which they have not done, nor have they given any data in their testimony from which an account can be taken of their receipts and expenditures as mortgagees in possession. It is on account of this failure on their part that it was concluded to cancel their mortgage. We do not concur in this conclusion. If it would serve any purpose, the case could now be referred for the purpose of having their accounts as mortgagees taken. But such a reference would result in no profit to any one; for it is perceived that a knowledge of the amount which the mortgagees received would be of no assistance in deciding the right of the complainant to redeem unless the amount due upon the mortgage is first ascertained. The deed of 1862, it is necessary to recall, was given to secure such sum as should be found due upon the complainant's accounting as executor. It was upon payment of that sum that the complainant got a right to a reconveyance. Now, unless, as a preliminary step, the complainant can show that he owes nothing, or that he owes so little that the receipts of the mortgagees would extinguish it, he is in no position to ask for redemption. If there was some method apparent by which the amount due to either the complainant or defendants could be even approximately ascertained, 1 think it would be a proper course to send the cause back, so that the defendants could present their account as mortgagees, and a master could restate the executor's accounts. But, as already remarked, the ascertainment of any result, even approximately, from a re-examination of the executor's accounts, is beyond hope. It follows, therefore, as a necessary consequence, that a reference to ascertain the mortgagees' profits would be fruitless. I think, therefore, that that part of the decree ordering the cancellation of the deed of 1862 should be reversed. I remark, in conclusion, that I do not believe that the complainant loses anything by this result. A careful reading of the testimony has impressed me with the conviction that the conveyance of the complainant's undivided interest in the property so left standing fails to compensate the children for the loss entailed upon the defendants by the inability of the complainant to account. The decree is reversed.

SLOCKBOWER et al. v. KANOUSE. (Court of Errors and Appeals of New Jersey. March 6, 1893.)

PARTITION-WHEN LIES-TITLE IN ISSUE.

Upon a bill for partition, if the legal title to the lands is put at issue, the court of chancery will not proceed to settle such title, but will either dismiss the bill or retain it to allow the title to be settled in an action at law. (Syllabus by the Court.)

Appeal from court of chancery.

Bill by Alexander Kanouse against Maria Slockbower and others for partition of real estate. There was a decree in favor

of complainant, (21 Atl. Rep. 197,) and defendants appeal. Reversed.

Alfred Mills, for appellants. James H. Neighbour, for respondent.

MAGIE, J. This appeal was from a decree for partition of lands, made upon the opinion reported in 48 N. J. Eq. 42, 21 Atl. Rep. 197. Upon the argument, counsel were directed to confine themselves to the question whether the decree, which settled the legal title of appellant, which had been denied by the answer of respond. ents, could be sustained. The established rule undoubtedly is that upon a bill for partition of lands, if the legal title of the parties is brought into dispute, a court of equity will not proceed to settle the disputed title, but will either dismiss the bill or retain it to allow the legal title to be settled in an action at law; but if, on such a bill, the title of any party is disputed on equitable grounds, the legal title not being contested, a court of equity will pass upon and settle such dispute in that suit. Pom. Eq. Jur. p. 1388; Bisp. Eq. p. 489. This rule has been constantly recognized and acted upon by our court of chancery. Manners v. Manners, 2 N. J. Eq. 384; Obert v. Obert, 10 N. J. Eq. 98; Lucas v. King, 10 N. J. Eq. 277; Palmer v. Casperson, 17 N. J. Eq. 204; Dewitt v. Ackerman, 17 N. J. Eq. 215; Hay v. Estell, 18 N. J. Eq. 251; Cemetery Co. v. Turner, 24 N. J. Eq. 18; Hoyt v. Tuers, 35 N. J. Eq. 360. The case of Forsyth v. Forsyth, 46 N. J. Eq. 400, 19 Atl. Rep. 119, the decree in which was affirmed by this court, (47 N. J. Eq. 327, 21 Atl. Rep. 754,) is not to be considered as indicating the abandonment or relaxation of the rule forbidding a court of equity to settle, in a suit for partition, a legal title. If the dispute in that case concerned a mere legal title, the rule was not urged by counsel or suggested by the court, and the point was passed sub silentio. This court had frequently recognized the rule, (Obert v. Obert, 12 N. J. Eq. 424; Polhemus v. Emson, 29 N. J. Eq. 583; Read v. Huff, 40 N. J. Eq. 229,) and in a later case made it the basis of decision, (Vreeland v. Vreeland, 49 N. J. Eq. 322, 24 Atl. Rep. 551.) As the decree below violates this rule, it must be reversed, and the cause remitted to the court of chancery, to he proceeded on, in conformity with these views.

LYONS v. PYATT et al.

name thereto; Lyons signing his. Held that, if Mrs. Waite had no authority whatever to bind Mrs. Pyatt in authorizing the broker to sell, she ratified both the act of her sister and the agent by letters directing the agent to prepare a deed, and by executing and acknowledging such deed, and delivering it again to the broker for the purpose of completing contract of sale.

2. Also, held, that, although the written agreement entered into by the broker may have been so imperfectly executed as not to bind either of the sisters, they both ratified it, and became bound by its provisions, by their letters, and by the execution and tender of the deed for the premises.

3. A letter written by Mr. Pyatt, at the request of his wife and Mrs. Waite, to the broker, inclosing a check for the sum named in the contract as liquidated damages, directing him to hand it, together with the part consideration money which Lyons had paid to him, and also to return the contract, to Lyons, constitutes a distinct ratification of the contract, and relates back to the time of its execution.

4. Such broker having been continued in their service with respect to the same transaction, they were chargeable with all the information which he possessed respecting the matter. 5. They were chargeable with the knowledge of an attorney who drew the agreement, and had the possession of it at the time when they employed him, though such employment was not until after the time named for the delivery of the deed.

6. Where vendor and vendee are endeavoring to remove some supposed incumbrance or cloud unon the title, neither one has a right to consider his obligations to the other determined, without reasonable notice.

7. Where vendors agree to convey a house and lot at the corner of Nassau and Witherspoon streets, and it is discovered afterwards that 3 feet and 11 inches of the house is upon Witherspoon street, and the deed which is tendered by the vendors purports to run along Nassau street 26 feet and 6 inches to Witherspoon street, such tender is in compliance with their agreement, and conveys all the land owned by the vendors in the corner formed by the junction of said streets.

(Syllabus by the Court.)

Bill by James J. Lyons against Emma V. Pyatt and others to compel the specific performance of a contract to convey real estate. Judgment for complainant.

John D. Hageman and James Buchanan, for complainant. W. D. Holt and F. A. Dennis, for defendants.

BIRD, V. C. On the 12th day of December, 1891, Mrs. Pyatt and Mrs. Waite were supposed to be the owners in fee simple of a lot of land in Princeton located at the corner of Nassau and Witherspoon streets. In that month Mrs. Waite gave to Ollie H. Hubbard, a real-estate broker living in

1. Mrs. Pyatt and Mrs. Waite are sisters. They owned a house and lot as tenants in common, and for years had been anxious to make sale thereof. Mrs. Waite authorized a realestate broker to make sale for $8,500, fixing all the terms by memoranda in writing, to which she signed, "Waite & Pyatt." The broker, by writing purporting to be for Mrs. Waite and Mrs. Pyatt, upon the face of it, agreed to sell the lot to one Lyons, simply signing his own

in the names of "Waite & Pyatt." Among other statements therein are these: "Property of Mrs. Waite and Pyatt for sale or exchange. Situation, corner of Nassau & Witherspoon streets, Princeton, N. J. Size of house or lot: House, 13 rooms; lot, 22x129. Price, $8,500. Amount in cash, all. Possession given April 1st, 1892. ” On the 12th day of February, 1892, Hubbard entered into an agreement with James J. Lyons, the complainant, for the sale of the said premises to Lyons for $8,500, which sum was to be paid on the 1st day of April, upon the delivery of the deed

was covenanted that the property was to be conveyed to me on April 1, 1892, with good title. The time was extended to April 18th. No deed has been given yet. I am informed you cannot give good title to the property. I think this sale should be concluded at once, according to agreement, and it seems only proper for me to say now that I will have to hold you strictly to the terms of the agreement. I am damaged by every day of delay." On the 23d of May, two days after the date of the last letter, Mrs. Waite and Mrs. Pyatt, together with their husbands, caused to be tendered to Lyons the deed for the premises which they had executed and acknowledged before the 1st of the preceding April, which Lyons refused to accept because of the supposed defect in the title alluded to in the letter last quoted. June 12th, R. Pyatt, husband of Mrs. Pyatt, wrote the following letter to Hubbard: "I wanted to see you, to learn the condition and possibilities of Lyons' taking the property. Will you kindly call upon me some time to-morrow, and, if you should see Mr. Dennis, kindly ask him to call with you, or some time which will suit his convenience?" July 13th, Lyons addressed the following letter to Mrs. Waite: "The delay in regard to the conveyance of the Duryea property is causing me great annoyance, trouble, and damage. It seems evident that the borough council is not going to do anything. I think you ought to make your atty. begin a suit at once to clear up the title. It should be done immediately. I want the property title made good. This delay is breaking up all my plans, and I am paying interest from April 1st, last, upon money which I borrowed to pay upon your property. All this loss and damage, of course, I will hold you responsible for." R. Pyatt says that he called upon Lyons in the latter part of September, and asked him if he was going to take the property, and that he said to him their patience was about exhausted, to which Lyons responded that he would take the property if they could give him a good title. Pyatt says he then said, “I told him we could not give him any other deed." October 4th, R. Pyatt wrote to Hubbard as follows: "Owing to Mr. Lyons' refusal to accept title to property, No. 90 Nassau St., as tendered, and having another opportunity to dispose of the same, we have done so. The liability under the contract, in case of forfeiture, (that we are to pay $500;) and I have sent my check for that amount to Mr. F. Dennis. You will therefore please turn over to him the $500 deposited by Mr. Lyons with you, which we desire to return to him with his contract. Send your bill to me for brokerage, which I believe was understood to be $212.50, and I will send you check for the same.

"

The effect to my mind upon reading the correspondence between these parties, and their statements, is the conviction that the defendants, the Pyatts and the Waites, adopted and ratified, in the fullest and amplest manner, the action of Hubbard in entering into the agreement with Lyons. It is true that in the outset they did not know exactly what form of agreement he

had entered into, but they had every reason to believe that whatever he had done was in compliance with written instructions from Mrs. Waite, and whatever that was they adopted, and made it their own; so that if what he did, which they so adopted, was a lawful and binding agreement, it became theirs, and they were entitled to the benefit of it; but, if not a lawful and binding agreement, then no one was bound. They proceeded to act upon the assumption that he had made a lawful and binding agreement. They directed the preparation of a deed of conveyance by Hubbard, and called upon him to present it for execution. It was prepared by him, presented to them by him, executed by them, and delivered by them to him, with instructions to deliver the same to Lyons upon the payment by him of the purchase money. That deed was so prepared and executed in compliance with the previous action of Hubbard in entering into the contract with Lyons, and only with that; and all this correspondence has its origin and support in that contract, and in nothing else. Penrose v. Leeds, 46 N. J. Eg. 294–296, 19 Atl. Rep. 134. As to ratification, see Merrifield v. Parritt, 11 Cush. 590. This case shows that one partner or cotenant may become bound by consenting to or recognizing the acts of the others. See, also, Wat. Spec. Perf. § 244; Story, Ag. 242, 244, 257, 258; Gulick v. Grover, 33 N. J. Law, 464; Jacobus v. Insurance Co., 27 N. J. Eq. 607; Bigg v. Strong, 3 Smale & Giff. 592; Stuart v. Railroad Co., 15 Beav. 513. Subsequent ratification gives agency the force and effect of an original express authority. Starks v. Sikes, & Gray, 609. In this case, two of three tenants in common leased the whole premises, which the third afterwards ratified. Persous v. McKibben, 5 Ind. 261; Clealand v. Walker, 11 Ala. 1058. The agency may be implied from letters, and from other facts and circumstances. Wat. Spec. Perf. § 243; Everman v. Herndon, (Miss.) 11 South. Rep. 652.

But

It is urged they did not ratify because they did not know that an agreement had been entered into in writing. But they did know that an agreement had been entered into, and they well knew and understood the terms thereof, and acted upon such understanding. As aboveintimated, in whatever form that agreement was, they accepted it, and were bound by it, to the extent that it was lawful. their agent who was acting for them knew the contents of the agreement, and they were bound by his knowledge. I refer to Hubbard as such agent; not, indeed, as agent to make the sale, but as agent to carry on and complete the purchase. They continued him in their employ. They authorized him to prepare the deed, and gave him directions as to its execution. Mr. Pyatt requested him to bring it to New York, that he and his wife might execute it. He carried it there, and they executed it, and handed it to him. The above correspondence shows that they continued him in their employ until after the sale to Vanderbilt, in October, as a reference to such letter, above quoted, will show. It cannot be doubted but that

Mr.

This view with respect to the attribution of the knowledge of Hubbard to the Waites and Pyatts is still more striking, if true, with respect to the binding effect on them of the knowledge of Dennis. We will suppose it to be true, as they insist, that Dennis was not in their employ until after the 1st of April, when some question arose concerning the title to a part of the lands covered by the house on the lands referred to in the agreement. He was then requested to go to Somerville, and make search, as against this lot. He was paid for this. But if it be urged that this was a distinct employment, and tbat his relations terminated when the search was reported, it cannot be denied but that he was employed by them afterwards during the pendency of the efforts to dispose of the question of title. Dennis was employed by Hubbard to draw the agreement. He drew the receipt for the payment of the $500, part of the consideration money. He retained possession of the agreement for the parties. If the rule that in equity the principal is bound by the knowledge of his agent or attorney be of any value, I can see no way to disregard its application in this case. R. Pyatt, in his testimony, distinctly says that he was authorized by Mrs. Pyatt and Mrs. Waite to speak and to act for them, and that under their instructions he asked Lyons, during the last week in September, to accept of a deed for the premises. It also appears that in a few days thereafter he wrote to Dennis, speaking of the contract with Lyons, and sending him his check for $500, the liquidated damages mentioned in said contract, with directions that it should be paid to Lyons, as will more fully appear by the letter itself, above quoted.

But, in addition to all these considerations, it is of great importance to remember that, on the 21st day of May, Lyons wrote a letter to Hubbard, calling his attention to the contract, and that on the 23d of the same month a deed for the premises was tendered to Lyons. But it is insisted that the defendants had a right to terminate the contract, on their own motion, because of the laches of Lyons. There is no authority for this, nor is there the slightest foundation for it in the facts of the case. Until Vanderbilt offered to buy, I have no doubt that the defendants were anxious to arrange and settle the question concerning the title with Lyons, and that he was anxious to have it settled. They had been making every effort to sell for several years, and he was paying interest on $6,000, and yet without any beneficial interest in the property. They wanted the consideration money, and he wanted the premises as a place of business. The matter which caused delay was the fact that 3 feet and 11 inches of land covered by the house is alleged to be a part of the public street or highway. thought that relief against this might be had by the interference of the borough v.26A.no.7-22

It was

common council had the matter under consideration for several weeks. It is true the defendants say they did not authorize this, but it is equally true that they acquiesced in it. They made no objection until they had an opportunity to sell to Vanderbilt. They disregarded all their obligations without the slightest notice to Lyons, The authorities all show that he was entitled to reasonable notice. Huffman v. Hummer, 18 N. J. Eq. 83; Wat. Spec. Perf. § 482; Id. §§ 151, 419, 465; Fry, Spec. Perf. 317, 319; Bullock v. Adams' Ex'rs, 20 N. J. Eq. 367; Houghwout v. Boisaubin, 18 N. J. Eq. 315; Van Doren v. Robinson, 16 N. J. Eq. 256; King v. Ruckman, 20 N. J. Eq. 316; Grigg v. Landis, 21 N. J. Eq. 494.

Concluding that the complainant is entitled to relief, the question, therefore, is what relief should be given, as the case is now presented. Counsel for Lyons insist that, under the circumstances of this case, the court should decree a conveyance by the defendants, with such an abatement of the price as will be equivalent to the difference in value between the 22 feet 6 inches and the 26 feet 5 inches,-such difference supposed to be included in and covered by the public street or highway, as well as the building standing upon the premises; citing in support of this view Armor Co. v. Bruner, 19 N. J. Eq. 336; Lancaster v. Roberts, (Ill. Sup.) 33 N. E. Rep. 27; 2Story, Eq. Jur. (13th Ed.) § 779; Woodbury v. Luddy, 14 Allen, 1; Jerome v. Scudder, 2 Rob. (N. Y.) 169, and other cases there cited. In my judg ment, whatever the determination of the courts in this state may be as to the rights of a vendee for compensation, when he asks for a specific performance of a contract, the principle invoked in that direction cannot apply to this case, for the reason that the vendors did not agree to sell any part of the highway, although they may have believed, as I think Lyons believed, that the width of that lot was equal to the length of the house, or, in other words, that their title was just as good to that part of the land covered by the house, but which is now supposed to be in the highway, as to any other part. The instructions to Hubbard were specific. They were to sell property "at the corner of Nassau and Witherspoon streets," and not any portion of the street. It was also distinctly stated that the lot was "twen. ty-two and one half feet by one hundred and twenty-nine," which carries it to the supposed line of Witherspoon street. In the agreement signed by Hubbard and Lyons, the lot is described as "all that tract and lot of land and premises situate on the corner of Nassau & Witherspoon, in Princeton, aforesaid." Most clearly, the defendants only agreed to convey a lot of land bordering on Nassau and Witherspoon streets. I have been wholly unable to discover any method of reasoning which bound them beyond this. Lyons was undoubtedly deceived. He supposed that the width of the lot was equal to the length of the house. But there is nothing to show that the defendants said or did anything to deceive him, except it be claimed that, when one offers to sell a house and