she received for the said land, she had expended $1,300 in her necessary support. The balance, $1,200, she had in her possession at her death. After the commencement of the condemnation proceedings, Alfred Cooper assigned to the said Elizabeth Downs all his interest in the money that might be awarded thereby. She has no other title thereto than by said assignment. Upon the decease of the said Elizabeth Cooper, it was verbally agreed by and between Alfred Cooper, Charles Cooper, William Cooper, and Henry Cooper-they being of full age, and being the only parties entitled to the property and estate devised to them under the will of the said Charles Cooper, deceased-that they would pay all the debts and funeral expenses from and out of the said $1,200, and would thereupon divide among themselves, in equal portions, the balance of said sum of $1,200, and would divide among themselves, in equal portions, the personal property owned by the said Charles Cooper at the time of his decease, and valued at the sum of $10,000, and, upon such payment and such division being made, that they would consider the amount so divided and received as a full, final, and complete distribution and settlement of any and all rights, titles, and interests, claims and demands, which they, or either of them, were entitled to receive under and by virtue of the provisions of the last will of the said Charles Cooper. The money that was thus agreed to be divided among said parties was the property, or the proceeds of property, which was owned by the said Charles Cooper at the time of his decease; and no part thereof was the property or estate, or interest therein, of the said Elizabeth Cooper. Pursuant to their said agreement, the said Alfred Cooper, Charles Cooper, William Cooper, and Henry Cooper paid all the debts of the said Elizabeth Cooper, and all her funeral expenses, which amounted to the sum of $200; and, after making such payment, they thereupon divided among themselves, in equal portions, the sum of $1,000 in cash,-that being the balance of the money received by the said Elizabeth Cooper upon the sale of the fee of the said real estate, as above described, and which remained in her hands at the time of her decease, after paying the said debts and funeral expenses; and they also divided among themselves at said time, in equal portions, said personal property, amounting to the sum of $10,000; and each and all of said parties received said money and said personal property as and for the portion or share which they were entitled to receive under the said will of the said Charles Cooper; and all of said parties have ever since retained said money and said property, and have ever since considered the same as a full, final, and complete settlement of all rights or interests which were devised to them under the last will of the said Charles Cooper; and they especially received said sum of $1,000, in cash, in lieu and in place of the real estate,

the fee of which had been devised to them by the said Charles Cooper, but which had been sold by the said Elizabeth Cooper in the manner before described; and said parties intended, by this division of said money among themselves, to ratify and confirm the sale of said real estate by the said Elizabeth Cooper; and in pursuance of such intention and agreement the said William Cooper, Charles Cooper, and Henry Cooper have each executed and delivered to the said Henry G. Alling deeds of all their rights, titles, and interests in and to the premises herein described, without the payment of any money therefor. The said Alfred Cooper knew when he made said agreement and received said money that the amount he received under and pursuant to the said agreement was the money which the said Elizabeth Cooper received from the sale of the said real estate conveyed by her, the said Elizabeth Cooper, as aforesaid, and he had full knowledge that the said real estate had been sold and conveyed by full warranty deed, and that the said Henry G. Alling was then in the possession of said land, claiming title thereto by virtue of the deed which had been given by the said Elizabeth Cooper as aforesaid.

The

These facts, being admitted by the demurrer, must, for the purposes of the present discussion, be taken as proved and found by the court. Charles Cooper, William Cooper, and Henry Cooper may be laid out of the case. They have each released to Mr. Alling. rights of Elizabeth Downs are just the sameas, and no greater than, the rights of Alfred Cooper. Her assignment from him was since the commencement of the condemnation proceedings.

Before the superior court, the parties seemed to have discussed only the question of estoppel. The court, in its memorandum of decision, placed its conclusion on the ground that there was no estoppel. The briefs in this court are largely made up of the same discussion. If that was the only question in the case, we might be led to agree with the superior court. But estoppel is not the doctrine of the case. There is another ground clearly set forth in the answer of Mr. Alling, on which it seems to us the answer should have been held sufficient, and the demurrer overruled. And that ground is that Alfred Cooper has ratified the sale of his land made by his mother. The language of the answer is explicit: That Alfred Cooper and his brothers received said sum of money inlieu and in place of the real estate which had been devised to them by their father, but had been sold by their mother, and said parties intended, by the division of said money among them, to ratify and confirm the sale of said real estate by the said Elizabeth Cooper. And the said Alfred Cooper knew when he received said money that the amount which he received was the money which the said Elizabeth Cooper had received from the sale of the said real estate, and he

had full knowledge that the said real estate had been sold and conveyed by a full warranty deed. This is, then, the condition of things: Mrs. Elizabeth Cooper, without authority to do so, sold and undertook to convey land which belonged to Alfred Cooper. She received the full value of the land in money. Her grantee entered into possession of the land conveyed, and claims to have a complete title thereto. Alfred Cooper, know

ing all these facts, and intending to ratify and confirm the sale of his said land, has received that money and applied it to his own use, and still keeps it. Ratification means the adoption by a person, as binding upon himself, of an act done in such relations that he may claim it as done for his benefit, although done under such circumstances as would not bind him, except for his subsequent assent, as where an act was done by a stranger having at the time no authority to act as his agent, or by an agent not having adequate authority. The acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances, is a ratification. Ratification makes the contract, in all respects, what it would have been if the requisite power had existed when it was entered into. It relates back to the execution of the contract, and renders it obligatory from the outset. The party ratifying becomes a party to the contract, and is, on the one hand, entitled to all its benefits, and, on the other, is bound by its terms. Negley v. Lindsay, 67 Pa. St. 217; Edwards v. Railroad Co., 1 Mylne & C. 650-672; And. Law Dict. in verb.; Stanton v. Railroad Co., 59 Conn. 285, 22 Atl. 300. Alfred Cooper, having ratified the sale of his land by his mother, and now, through his assignee, seeking to obtain the money in the hands of this court, is in the position of one who has verbally contracted to convey his land to another, has put that other into possession, has received his pay in full in money, and, while keeping the money, is trying to get the price of his land the second time. It needs no argument-or, rather, the statement of the case is the strongest possible argument-to show that he ought not to succeed. And, as he cannot succeed, so also his assignee, Elizabeth Downs, cannot. There is error. The demurrer should be overruled. The judgment sustaining the demurrer is reversed. The other judges concurred.

PINNEY V. JONES. (Supreme Court of Errors of Connecticut. July 9, 1894.)

ACTION TO FORECLOSE MORTGAGE-PAYMENT

EVIDENCE.

In an action to foreclose a mortgage, defendant claimed she had paid $1,500 on it, and gave evidence to show that she had such sum in her possession, and buried it, and that after she buried it she showed her daughter the spot in which it was buried. Held, that evidence of

what defendant told her daughter at the time, as to the money being there, and her reasons for showing her where it was, was not admissible.

Appeal from superior court, New Haven county; Prentice, Judge.

Action by Maria W. Pinney, executrix of the estate of Charles H. Pinney, deceased, against Emily Jones to foreclose a mortgage. From a decree for plaintiff, entered on the report of the state referee, defendant appeals.

Affirmed.

V. Munger, for appellant. William H. Williams, for appellee.

TORRANCE, J. This is an action brought to foreclose a mortgage made to secure a note for sixteen hundred dollars by the defendant, Emily Jones, to Charles H. Pinney, now deceased. The defendant claimed to have paid upon said note to Pinney, during his lifetime, the sum of $1,500, and whether this was true or not was the main fact in dispute between the parties. The case was tried before the Honorable Elisha Carpenter, as state referee. For the purpose of showing her ability to make such payment, the defendant offered evidence to prove, and claimed she had proved, that at the time when she bought the mortgaged premises, in March, 1892, she had in her possession the sum of $1,500, in addition to the sum of $500 which she had paid on account of said purchase; that this sum of $1,500 was in a package in her house; that she moved into the house upon the mortgaged premises in April, 1892, and two or three weeks thereafter, in the presence of her daughter Cora, who was produced as a witness, she counted said $1,500, and, after counting the same, deducted $15 therefrom, and placed the remainder in a tin box, and placed the box, with the money in it, in a jar, and sealed up the jar with putty; and that, after leaving the jar upon a shelf to dry for two or three days, she and her husband, who was produced as a witness, buried this jar in the cellar near the bottom of the stairs, covered it over, and placed a paint barrel over the spot where the jar was buried. While Mrs. Jones was upon the witness stand, her counsel offered to prove by her that, some time within two months after the money had been counted as aforesaid, Mrs. Jones requested her daughter Cora to go with her to the said place where the money was then buried, and that thereupon Cora and she went to the spot from the sitting room above; that Mrs. Jones then and there removed the paint barrel, and told Cora that the money was in a pot in the ground, and that she wanted her to know where it was, "for if she should die she wanted her to know about it." The finding states: "It was not claimed that the earth was removed from over the jar in which the money was claimed to have been placed, or that the jar or other thing, in which it is now claimed the money then was, was so exposed or attempted to be exposed to view. The

plaintiff's counsel objected to the admission in evidence of the conversation between the said Emily Jones and her daughter Cora upon this occasion, and it was excluded; to which ruling the defendant duly excepted." Mrs. Jones thereafter upon this point testified, without objection, as follows: "Cora went with me down cellar; went down the cellar steps to the left hand of the stairs, just as you go down. I showed her the money. I took the paint barrel, and moved it around like this [illustrating], and pointed out to her where the money was concealed. Then I set the barrel back on the same spot I had removed it from. Then we went upstairs. That she, Cora, was the only person, so far as she knew, besides her husband, that ever knew or was shown where the money was." The daughter Cora also testified, without objection, to her going down in the cellar with her mother, and being shown where the money was concealed, substantially as her mother had done. The referee found that said claimed payment of $1,500 had not been made. To the report made by the referee the defendant filed a remonstrance, setting up as the ground of it the action of the referee in excluding the conversation aforesaid between Cora and her mother. He further set up therein that the plaintiff claimed that Mrs. Jones did not have said sum of $1,500 at any time after 1891, and that her entire story with reference to the possession of said sum was false. The plaintiff demurred to the remonstrance, the court sustained the demurrer, judgment was rendered for the plaintiff, and the defendant appealed.

This appeal presents but a single question, and that is whether the statement made by Mrs. Jones to her daughter was admissible. It is apparent that the defendant obtained the benefit of everything else claimed by her except this statement. She was allowed to testify fully to her acts and conduct in going into the cellar, and pointing out the place where she claimed the money was concealed, and from all this Cora understood that the

money was there buried. She says, indeed, that she there showed Cora the money; but from her own testimony, and from other parts of the record, it is clear that all she meant by this was that she showed her the place where the money was concealed. Essentially then, in this view of the matter, all that was excluded was her statement of her reason for having Cora know where the money was concealed; and it is perhaps questionable whether, even on the defendant's view of the case, the exclusion of that was error (Russell v. Frisbie, 19 Conn. 205211); and, if it was, the case might perhaps be disposed of on the ground that the error did not harm the defendant. But, as we think the evidence was rightly excluded, we prefer to rest the decision upon that ground, rather than upon the one suggested. As we have said, what was done in the cellar was,

without objection, fully testified to by both Mrs. Jones and Cora. What was said was excluded; and that was, in substance, a statement by Mrs. Jones that the money was buried there in a jar, and that she wanted to have Cora know, for a reason then stated, where it lay. The defendant strenuously insisted that this statement characterized the act of Mrs. Jones in going to the cellar, and doing what she did there, and was admissible in corroboration of her claim to the possession of the money, and as part of the res gestae; and in support of these claims she relies mainly upon the case of Card v. Foot, 56 Conn. 369, 15 Atl. 371. The general rule is that a party cannot give in evidence his own declarations in his own favor, made in the absence of the other party; but there is one well-recognized exception to this rule, where such declaration is part of what, for want of a better name, is called the "res gestae." Kilburn v. Bennett, 3 Metc. (Mass.) 199; Stirling v. Buckingham, 46 Conn. 461. The nature and limits of this exception are tolerably well defined, although the application of the rule embodied in the exception, in particular cases, is sometimes attended with difficulty. That rule is thus stated in Starkie on Evidence (10th Ed., 466-687): "In the first place, an entry or declaration accompanying an act seems, on principles already announced, to be admissible evidence in all cases where a question arises as to the nature or quality of that act. Indeed, whenever an entry or declaration reflects light upon, or qualifies, an act which is relevant to the matter in issue, and is evidence in itself, it becomes admissible as part of the res gestae, if it be contemporaneous with the act." According to this writer, before a written declaration made by a party in his own favor can be admissible as part of the res gestae, the act which it characterizes, and of which it forms a part, must be itself admissible in evidence in the case; and so are the authorities. "Where an act done is evidence per se, a declaration accompanying that act may well be evidence, if it reflects light upon or qualifies the act. But I am not aware of any case where the act done is, in its own nature, irrelevant to the issue, and where the declaration per se is inadmissible, in which it has been held that the union of the two has rendered them admissible." Coltman, J., in Wright v. Tatham, 7 Adol. & E. 361; Hotel Co. v Manning, 1 Ir. R. Com. Law, 125. "Res gestae are the circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character." Stirling v. Buckingham, 46 Conn. 461. "When the act of a party may be given in evidence, his declarations, made at the time, and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence. There

must be a main or principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it." Lund v. Tyngsborough, 9 Cush. 36. It follows that if the act of Mrs. Jones irrespective of the accompanying statement, was not in itself admissible in evidence, then the statement was inadmissible; and the fact that the act was admitted without objection does not make the accompanying statement legal evidence. The question, then, is whether what Mrs. Jones did upon the occasion in question was per se admissible as evidence in the case, and we are clearly of the opinion that it was not. It was offered and received as an act tending to show that she then had this money in her possession; but, rightly considered, it was not in any proper sense, within the meaning of the rule in question, an act or transaction at all. It is true there were the physical acts of going downstairs, and over to where it was supposed the money was buried, and the moving of the paint barrel, and the pointing to or other wise indicating a certain spot of earth, but that was all. There is nothing in all this tending in the least to show that the money, or the receptacle which had contained it, was then in the spot pointed out. For aught that appears, all that Mrs. Jones could then know or say about the money was, not that it was then there, but that she had put it there some time before, and believed it was there then; and neither she nor Cora then knew, or could know, that the money was then in the possession of Mrs. Jones, or even in existence at all. Nothing whatever was done by either of them with, or with reference to, the money or the jar; they were not seen, handled, nor dealt with in any manner whatsoever. Essentially, the socalled "act" or "acts" of Mrs. Jones are but statements or declarations that she had buried the money there some time before, and believed it was there then.

Suppose Mrs. Jones and her daughter had remained up-stairs, and Mrs. Jones had said to Cora: "I put the money you saw me count the other day into a tin box, and the box into a jar, and buried the jar in the cellar to the left hand of the stairs, just as you go down, and put a paint barrel over the spot where they now are. I tell you this, so that in case of my death you will know where to find the money,"-could any one successfully contend that such a statement was admissible? Clearly not. It would be a mere naked statement or declaration of a past transaction in the party's own favor, and would clearly fall within the general rule of exclusion. But the supposed case does not differ essentially from the real case,-for in the one Mrs. Jones indicates and describes the place where she buried the money by words, and in the other she indicates and describes it by acts; and the result of both is but a

statement or declaration to Cora that the money had been buried there, and that Mrs. Jones believed it was there at that time. That in the one case this information is conveyed to Cora by words, and in the other by acts, can make no difference; in both the result is only and solely information conveyed. The difference between an act of the kind here claimed and the acts done in Russell v. | Frisbie, 19 Conn. 205, and Card v. Foot, 50 Conn. 369, 15 Atl. 371, is quite obvious. In the former case the defendant was allowed to prove what he said to one Hempstead, when he handed to him for safe-keeping the ship's papers, which defendant had taken from a vessel of his in order to revoke the authority of her captain; in the latter, the plaintiff was allowed to prove what she said to Miss Lyon when she delivered to her for safe-keeping the package containing the plaintiff's bonds. In both of these cases the declarations allowed, accompanied, grew out of, formed part of, and of course qualified and characterized, acts which themselves were clearly admissible to prove the then possession and disposition of the ship's papers in the one case, and the bonds in the other. The acts were not in effect mere declarations, but acts of possession and disposition in a real and true sense. In the case at bar this is not so. There the so-called "act" is itself, in effect, but a statement or declaration. Nothing was transacted, nothing was done, nothing was transpiring, evident to any witness, which could confirm the declarations excluded, or by which, upon cross-examination or otherwise, the truth of those declarations could be tested. "Declarations accompanying acts are a wide field of evidence, and to be carefully watched," said Williams, J., in Queen v. Bliss, 7 Adol. & E. 556, a good many years ago; and we think this "field" should still be carefully watched. The exceptions to the general rule excluding statements made by one in his own favor ought to be strictly limited; certainly the scope of the exception in question ought not to be extended to a case like the one at bar. For the reasons given, the claimed act or acts of Mrs. Jones were not admissible, and should, and on objection probably would, have been excluded. They were, however, admitted, and of this the defendant does not, and cannot justly, complain; but, on objection, the statement accompanying the claimed act was excluded, and we think was rightfully excluded. There is no error. The other judges concurred.

TALLCOTT v. TOWN OF GLASTONBURY. (Supreme Court of Errors of Connecticut. July 9, 1894.) TAXATION-EXEMPTIONS-STATUTORY PROVISIONS.

Plaintiff, a resident in defendant town, being indebted to another resident in a certain sum, evidenced by his note secured by a mort

gage on certain realty, paid to the state treasurer a tax of 1 per cent. thereon for five years, the latter indorsing the payment on the note, and its consequent exemption from taxation, as provided by Pub. Acts 1889, c. 248, § 9. Held, that plaintiff was still entitled to have the board of relief "deduct the amount thereof from" his tax list, as taxable property, under Gen. St. § 3854, because he was indebted in such manner "that the debt was liable to be assessed and set in the list of the creditor."

Case reserved from superior court, Hartford county; Shumway, Judge.

Proceedings by Thomas H. L. Tallcott, in the nature of an appeal from the refusal of the board of relief for the town of Glastonbury to make a certain deduction from his tax list. The cause was reserved by the superior court of Hartford county for advice. Judgment for plaintiff.

William C. Case, for appellant. John R. Buck, for appellee.

FENN, J. This is an application in the nature of an appeal, pursuant to Gen. St. $ 3860, from the action of the board of relief of the town of Glastonbury, to the superior court, which was reserved by that court for our advice. The material facts are these: On October 1, 1891, the plaintiff was a resident of said town, and was indebted to one Hardin, another resident, in the sum of $1,000, evidenced by the plaintiff's note on demand, and secured by mortgage on real estate in said town. On September 15, 1891, the plaintiff paid into the treasury of this state a tax of 1 per centum on the face amount of said note for five years, and the treasurer thereupon duly indorsed the fact of such payment, and consequent exemption, upon said note. The plaintiff, having made and delivered to the assessors his list, requested the board of relief to deduct the amount of said debt from such list. This This the board of relief refused to do. The sole question is, was the plaintiff entitled to such deduction?

Gen. St. § 3854, provides that "if any resident in any town shall be indebted to another resident in this state, in such manner that the debt is liable to be assessed and set in the list of the creditor, the board of relief for such town shall, on his request, deduct the amount thereof from the list of such debtor, and add the same to the list of the creditor, if resident in the same town. ***" Section 9 of chapter 248 of the Public Acts of 1889 provided that "any person may take or send to the office of the treasurer of this state, any bond, note, or other chose in action, and may pay to the state a tax of one per centum on the face amount thereof for five years"; that "the treasurer shall thereupon indorse" that "the same is exempted from all taxation for the period of five years"; and that the same shall be so exempt. It is the claim of counsel in behalf of the defendant that the note in question was not liable to taxation on and after

October 1, 1891, and hence the debt was not liable to be assessed and set in the list of the creditor, and therefore does not come within the provisions of Gen. St. § 3854; that "it is taxable property that the law requires shall be put into the list, not untaxable or exempted property." It is further said that it does not appear that, by the legislation in force in 1891, the legislature intended to exempt real estate mortgaged to secure "bonds, notes, and other choses in action," which had been exempted by the payment of the tax of 1 per centum, and that the amended act of 1893 (Pub. Acts 1893, c. 207) "explicitly takes away the privilege of exempting the notes themselves, when secured by mortgage on property in this state."

It appears to us that if any assistance can be afforded by the subsequent and amendatory legislation of 1893, in determining the intention of the legislature, as expressed in the act of 1889, it does not tend to support the defendant's claim. It was only because "bonds and notes secured by mortgage on real estate situated in this state" were within the operation of the provisions of the act of 1889, that any occasion existed to except them from it by the amendment of 1893. But there would be no necessity to make such exception, provided the payment of the tax to the state, in order to obtain exemption from further taxation of the chose in action, operated to prevent the owner of "the real estate situated in this state," mortgaged as security, from claiming a deduction on account of indebtedness. The state would be the gainer in revenue by the amount, if any, which it received, as the price of exemptions to creditors, which, preventing their debtors from claiming deduction, left the aggregate of other taxation the same as if the state tax had not been paid, and the immunity not conferred. It is quite true that the note in question was not liable to taxation on October 1, 1891, but that was because on September 15, 1891, the prescribed tax was paid in advance for the period of five years. So, if "the debt was not liable to be assessed and set in the list of the creditor," it was for the reason that it had already, in effect, been so assessed and set in his list. If the board of relief could not "add it," it was because the purpose of such addition, the ultimate receipt of a tax upon it, was already accomplished in the summary alternative method provided by law. The facts in this case show that the plaintiff on September 15, 1891, was indebted in such manner that the debt was liable to be assessed and set in the list of the creditor. We do not think it changed either the fact or the manner of such indebtedness when, on said day, the equivalent of assessment to, and setting in the list of, the creditor was performed. Such performance ought not to be held to divest the plaintiff of the beneficial right of exemption conferred upon him by the statute. No doubt, the legislature could have repealed such exemption, if they had so de