proof by such witness of its execution, or duly ac counting for his non-production. That the witness is not in the county, and the maker of the instrumore) lay the foundation for receiving the eviment knows not where he is, will not (without dence of the maker himself to the fact of execution.

2. Unless one making advances and giving credit upon the faith and belief that he has a lien for the price really has it, mere notice to others that he is so acting, or has so acted, will not vitiate or postpone an otherwise valid mortgage taken by them after receiving such notice. (Syllabus by the Court.)

Error from superior court, Warren county; LUMPKIN, Judge.

The reporter's statement referred to in the opinion is as follows:

ground that the conveyance which he is now seeking to get rid of, if not made with a view to hinder and delay his individual creditors, whose claims are now probably barred by lapse of time, was confessedly made as a mere sham and pretense, and not intended to effect any change whatever in "the use, occupation, enjoyment, and ownership" of the property conveyed. This, as I have said, would be placing the plaintiff in a better position than he occupied before making the sham conveyance which he is now seeking to avoid. For prior thereto he was equally responsible with Smith for the debts of the firm; but when Smith assumed payment thereof, and it must be assumed paid them,-as it is admitted that the debts have all been settled, and there is "This is a contest over a fund brought no pretense that plaintiff ever paid any into court under rule against the sheriff, at part thereof,-plaintiff would now be re- the instance of T. E. Massengale. The conlieved from that liability, and yet restored testants for the fund were as follows: T. to his interest in the property for which E. Massengale claimed under the foreclosSmith had already paid him. The deeds ure of a lien for supplies furnished by him show an acknowledgment of the payment to F. F. Armstrong, in 1885, to make a crop, of the consideration mentioned therein, under the following agreement: 'State of and, although this might be contradicted Georgia, Warren county. This agreement, by any competent evidence, yet there is not made and executed this the thirty-first day a particle of competent evidence to that of January, 1885, between V. A. Johnson, effect, the testimony of plaintiff to this landlord, and F. F. Armstrong, doth witeffect being clearly incompetent, and so ness that, in consideration of the said V. A. ruled by the circuit judge, to which ruling Johnson, landlord, furnishing to the said there is no exception. In view of what has F. F. Armstrong four hundred dollars monbeen said, and in the face of the express ey, farming utensils, or other articles necterms of the deed, which are uncontradict-essary to make crops, clothing, medicines, ed by any competent evidence, I do not see and articles of necessity to supply a famhow the circuit judge could reach the con-ily, or any of said articles, during the year clusion" that, though there may have been 1885, the said F. F. Armstrong hereby oblia termination of the partnership as to fut- gates himself to pay the same the first day ure transactions by the deeds of the 1st and of October, 1885. And in order to secure 2d October, 1868, there has never been a the said V. A. Johnson, landlord, or assigns, final settlement between the partners of in making the said advances, I, the said F. their interest in the partnership property." F. Armstrong, hereby create and give to the But, reaching that conclusion, he seems to said V. A. Johnson, landlord, and his ashold, although the complaint is not framed signs, a full and complete lien on my entire with any such aspect, that the property crop of corn, cotton, and all other produce conveyed by the deed of 2d October, 1868, grown or to be grown by me, during the was impressed with some sort of trust, year 1885, on land in said county whereon which, though not expressed, is still capa- I farm during said year. And I further afble of proof, and he finds such proof in the firm this is the only lien given by me on said testimony of the continued acknowledg- crop. I agree that should this lien have to ment by Smith of plaintiff's joint interest be enforced by the law to pay all attorney's after the conveyance was made, and up to fees and court costs. In testimony of all of the time of his death. But, while there is which I have hereto set my hand and seal abundant evidence of such acknowledg- this the day and year first above written. ments, the only testimony that I am able F. F. ARMSTRONG. [L. S.] Executed in presto find indicating the trust (if any) is that ence of O. H. ROGERS.' 'Georgia, Warren proceeding from the plaintiff's witness county. I, V. A. Johnson, landlord, in conSchley, which shows that, if the property sideration that T. E. Massengale, merchant, was held by Smith upon any trust, it was will furnish the articles agreed to be furto protect it from the individual creditors nished by me in within lien to the said F. F. of the plaintiff; and surely no court of eq-Armstrong, hereby transfer and assign to uity would lend its aid in the enforcement him all my rights secured by the said lien, of such a trust. It seems to me, therefore, that in any view of the case, the judgment below should be reversed, and the complaint dismissed.

BAKER et al. v. MASSENGALE.

this 31st day of January, 1885, excepting my one-half of the crop. V. A. JOHNSON.' W. J. Walker claimed under a justice's court execution dated January 30, 1883, in his favor against F. F. Armstrong and others. Baker & Swain claimed under the foreclosure of a mortgage dated August 28, 1885,

(Supreme Court of Georgia. April 29, 1889.)1given to him by F. F. Armstrong on his

LIEN-EVIDence.

1. When the existence of a landlord's lien for supplies is directly in issue, a writing attested by a subscribing witness, and purporting to create such a lien, is not admissible in evidence without

crops raised that year; and also as transferees of another mortgage made by Armstrong to A. M. Massengale on June 9, 1885, covering one-half of crop raised that year.

"On the trial Armstrong testified that he signed the agreement above set out be'Publication delayed by failure to receive copy.tween himself and Johnson, and that O.

SOUTHEASTERN REPORTER, VOL. 10.

(Ga.

ness wrote the contract in evidence between V. A. Johnson and F. F. Armstrong, and it was signed early in January, 1885; that this contract was lost for a time, and in the spring or summer witness wrote another as near like it as he could, and this other was signed, and was subsequently destroyed upon finding the first one; that they were both alike, and the one in evidence was the first one signed up. Upon cross-examination, this witness said that Armstrong gave the mortgage in favor of Baker & Swain reluctantly; told witness that T. E. Massengale had a claim or lien on his crop, and witness finally promised to protect him in order to obtain the mortgage; that, after the first mortgage was written, witness showed it to T. E. Massengale, who said that he should have executed his lien for $400 instead of $200; and that witness gave Armstrong a written obligation to protect him on account of his giving a second paper on his credit. On being recalled, this witness denied that Armstrong told him that Massengale had a landlord's lien, and said he thought Massengale had a mortgage, but did not know the amount of it; did not know what Massengale claimed against Armstrong until Massengale told him in September, 1885; Baker & Swain furnished goods all through the year, and took their mortgage to save themselves. Witness told Massengale, on the day before the trial, that he lost the original contract between Johnson and Armstrong, had another executed, and subsequently found the lost one; could not swear positively whether the contract in court was the original or not. A. M. Massengale testified that he did not remember whether Armstrong gave him notice of T. E. Massengale's lien or not; that when he took the mortgage Armstrong had got part of the goods, and got balance afterwards; and that, as Amstrong was running six plows, it is not unlikely witness concluded that his crop would pay T. E. Mas

H. Rogers, the attesting witness, did not live in the county, and witness did not know where he was. The following paper was put in evidence by Baker & Swain. It bears no date: 'State of Georgia, Warren county. This contract, made and entered into by V. A. Johnson and F. F. Armstrong for the purpose of carrying on a joint farm on lands of V. A. Johnson, is as follows: V. A. Johnson, on his part, agrees to furnish the land and stock and to feed the stock; also to furnish farming utensils and half of the guano used on the farm. F. F. Armstrong, on his part, agrees to furnish all the labor, and to give his personal attention to cultivating and harvesting the crops, and to furnish half of the guano used on the place farmed by himself and V. A. Johnson. It is further agreed by both parties to this contract that any expense incurred jointly shall be paid out of the crops before any division, and that no expense shall attach to the crop unless agreed to by both parties; and after such joint crop to divide the crops equally, each taking half of all the crops raised on the place; V. A. Johnson to receive his half at home, and F. F. Armstrong to receive his half at same place. V. A. JOHNSON. F. F. ARMSTRONG.' Armstrong further testified that the first contract he made with Johnson was lost, and in the spring he signed another, but afterwards the first one was found, and they destroyed one, and the contract now in court is the last one they signed, which was in March; that, when he gave Baker & Swain their mortgage, he told Swain that Massengale had a landlord's lien, and Swain agreed in writing to protect him against it; that he also told A. M. Massengale the same thing when he gave him his mortgage; that the money in court is proceeds of cotton raised by him in 1885 on land of V. A. Johnson, which cotton is the same upon which Massengale had a landlord's lien and Baker & Swain a mortgage. T. E. Massengale testified that he furnished Armstrong the goods on the transferred land-sengale and himself. lord's lien in good faith; that there was no relation between him and Johnson but they found in favor of T. E. Massengale. landlord and tenant; that he knew noth- The other claimants moved for a new trial "The case was submitted to a jury, and ing about the paper introduced in evidence on the following grounds: (1) The verdict purporting to be a contract between John- is contrary to law and evidence. (2) The son and Armstrong, and never saw or court allowed Armstrong to testify to the heard of it until after the pendency of this execution of the lien transferred to Massenlitigation; that he saw a mortgage that gale; the objection being that such execuBaker & Swain had prepared for Armstrong tion should be proved by Rogers, who, as to sign, and which excepted a claim in wit- Armstrong testified, was not in the county, ness' favor for $200, and told Swain that and he did not know where he was. $200 would not half pay his claim, this be- The court, after instructing 'the jury that ing about September 1, 1885, and that the the contract without date introduced in mortgage was then signed up. James P. evidence, and claimed to represent the con(3) Swain testified that he was a member of the tract between Johnson and Armstrong, did firm of Baker & Swain, and a son-in-law not constitute the relation of landlord and of V. A. Johnson; that at the time Arm- tenant, erred in charging the jury as folstrong gave the mortgage to Baker & lows: 'Suppose you should believe that Swain he told witness that T. A. Massen- they were really not landlord and tenant, gale had a lien on his crop, but did not say but Massengale honestly thought so, and it was a landlord's lien, and witness thought then furnished the goods, I charge you, if it was a mortgage; that the first mort- that was the case, Massengale would be engage written out for Baker & Swain was titled to preference over the other creditors, never signed, probably on account of some if they took mortgages, and at the time defect about it, and a new one was written, had actual notice that Massengale was because the date in the first one would have furnishing goods under a landlord's lien, to be changed if it were used; that this un- as he believed it to be, or if the circumsigned mortgage recited that Massengale stances brought to the notice of these parhad a claim on the crop for $200; that wit-ties were sufficient to put them on inquiry

as to the nature of the dealings between Massengale and Armstrong.' (4) The court, after correctly charging that, if the relation of landlord and tenant did not exist between Johnson and Armstrong, Walker's claim of older date would be superior to Massengale's, erred in adding these words: 'But if the relation of landlord and tenant did exist, and Massengale took a transfer of the lien, his lien is superior to Walker's;' there being no evidence to authorize such charge. The motion was overruled, and movants excepted."

Jas. Whitehead, for plaintiffs in error. Thos. E. Watson and H. T. Lewis, for defendant in error.

BLECKLEY, C. J. 1 Money being in court for distribution, the proceeds of Armstrong's property, it was claimed by Massengale under a landlord's lien transferred to him by Johnson, the lien being given for supplies to make a crop. It was also claimed by other parties,-a part of it under a judgment older than the lien, and a part on mortgages younger than the lien. The writing purporting to create the landlord's lien was attested by a subscribing witness, who was not produced or otherwise accounted for, except that Armstrong, the maker of the lien, testified the witness was not in the county, and that he knew not where he was. What Massengale knew on the subject did not appear, nor did it appear that any diligence whatever had been used to find the witness or procure his testimony. The court admitted the evidence of Armstrong to prove the execution of the writing. This, we think, was error. The lien was not incidentally, but directly, in issue. This being so, the subscribing witness should have been produced, or adequately accounted for. 1 Greenl. Ev. §§ 557, 569; Code, § 3837; Barron v. Walker, 80 Ga. 121,7 S. E. Rep. 272. As to proper diligence to procure the evidence of the subscribing witness, see 1 Greenl. Ev. § 572; and that absence from the county does not put the witness beyond the jurisdiction of the court, see Harris v. Cannon, 6 Ga. 389. For the purpose of taking evidence the superior court of any county has jurisdiction throughout the state. The writing being improperly admitted in evidence, the whole trial was vitiated.

Roberts & Smith and J. H. Martin, for plaintiff in error. De Lacy & Bishop, for defendant in error.

SIMMONS, J. Mrs. Lee brought_complaint for land against Eastman. On the trial she offered the following evidence: The will of her father, Levi Harrell, dated June 10, 1856, directing his executor, L. L. Harrell, to sell the property not specifically disposed of, and make an equal division of the money among his children, of whom the plaintiff was one, and directing that the shares which his daughters received should be free from the disposition or liabilities of their husbands, being given to them for their use and benefit during their natural lives, and after their respective deaths to be divided among whatever children they might leave them surviving, their husbands to have the use of the property for the support of the families; and the executor of the will being appointed trustee for the testator's daughters, with the direction that he control their property so far as to protect it from the debts, contracts, or disposition of their present or future husbands. L. L. Harrell qualified as the executor, December 4, 1865. The plaintiff also offered in evidence an order of the ordinary, dated March 10, 1866, allowing the executor to sell the real estate for the purpose of division among the heirs; a deed dated December 4, 1866, from Harrell, the executor, to himself, as trustee for the plaintiff, conveying the land in dispute to himself as trustee; a deed dated July 2, 1870, from Harrell, trustee, to the defendant. The defendant introduced the following evidence: A deed dated March 16, 1870, from the plaintiff, Mrs. Lee, and her husband, to the defendant, conveying the property in dispute; the petition of L. L. Harrell, trustee, to the chancellor, for leave to sell the land in dispute; and an order from the chancellor dated at chambers, July 2, 1870, authorizing the trustee to sell and convey the land therein mentioned; and a deed from Harrell, trustee, made pursuant to the order of the chancellor. The defendant testified that he purchased the land from Harrell, trustee, and had been in possession from the time of the purchase to the time of the trial, about 17 years. He also testified that before he purchased this land from the trustee he had purchased it from the plaintiff, but, upon being informed that the legal title was in the trustee, he purchased the land from him, after the trustee had obtained an order from the chancellor authorizing him to sell the same. Harrell, the trustee, also testified that when he heard that the defendant had bought the land from the plaintiff, Mrs. Lee, he informed the defendant that his deed was not good; that the title would have to be made by the trustee; and that he consulted the plaintiff, Mrs. Lee, about it, and she consented for the trustee to sell the land to the defendant; and that he made the deed to the defendant under the order of the court, and sold him the land at the request of the plaintiff and her husband, and paid them the purchase money. Mrs. Lee denied that she signed the deed which purported to be signed by her and her hus'Publication delayed by failure to receive copy. band, and denied that she ever consented

2. We, however, rule upon one element of the charge to the jury, the import of which, and of our opinion upon it, will appear from the reporter's statement and the second head-note. We say nothing as to whether Massengale had a landlord's lien or not, but leave the whole question open for a second trial. Judgment reversed.

LEE V. OGDEN.

(Supreme Court of Georgia. July 8, 1889.)1

ADVERSE POSSESSION-FRAUD.

Mere notice of an outstanding title to land in a third person at the time of purchasing it is not such fraud as will prevent the purchaser from acquiring a prescriptive title by possession, if he acted in good faith.

Error from superior court, Dodge county; HINES, Judge.

Good

to the sale thereof, or that she received | title is not evidence of bad faith. any of the purchase money. She further faith is not inconsistent with such notice. testified that she never objected to the de- If a person buys land in good faith, believfendant's making improvements on the ing he is obtaining a good title, and enters land, and did not set up any claim to the into possession thereof, and remains there land after he bought it. There was other continuously, uninterruptedly, peaceably, evidence tending to show that the signature etc., for seven years, that possession ripens of Mrs. Lee's name to the deed was in the into a good title, whether the title he purhandwriting of her husband. The jury chased originally was good or not. The found for the defendant, and the plaintiff very object of the doctrine of prescription is moved for a new trial, on the grounds that to make a bad title good when the necesthe verdict was contrary to law and to sary requisites have been complied with. the evidence, and because the court charged Of course, if a person purchases land in bad as follows: "Possession, to be the founda- faith, knowing that the title he purchases tion of a prescriptive title, must be in the is fraudulent, it can never ripen into a good right of the possessor, and not of another; title; and that was the character of the must not have originated in fraud; must case of Brown v. Wells, 44 Ga. 573, cited in 74 be public, continuous, exclusive, uninter- Ga., in Hunt v. Dunn, supra. In that case rupted, and peaceable, and be accompa- Wells's title originated from a squatter, nied by a claim of right. If Eastman held who never had any title to the land, nor possession in his own right for seven years claimed any, and Wells and those under prior to the bringing of this suit, and that whom he claimed all knew this to be true. possession was public, continuous, exclu- That title, of course, originated in actual sive, uninterrupted, peaceable, and accom- fraud. It was a moral wrong on the part panied by a claim of right, and did not orig- of Wells, and those under whom he claimed, inate in fraud, then he has a good prescrip- to oust the true owner of the land, and tive title. Mere notice to him that the this court so held. The other case cited plaintiff was the owner of the land in dis- (Wingfield v. Virgin, 51 Ga. 139) sustains pute is not such fraud as would defeat his our view of the law. That case holds that prescriptive title, if he acted in good faith, the fraud must be a moral fraud,—a covbelieving that he was acquiring her title un- inous intention in procuring the deed. The der the order of the chancellor, if his object other cases cited are upon the subject of was to acquire her title." what is notice, and are not inconsistent with the doctrine we lay down in this case. While we cannot overrule the case of Hunt v. Dunn, supra, one of our associates being providentially absent, and no request having been made to us to review it, we express our decided disapprobation of the doctrine announced therein. Judgment affirmed.

The last sentence of this charge is assigned as error. Counsel for the plaintiff in error insist that, the defendant having purchased the land from Harrell, the trustee, with notice of the plaintiff's title, his possession originated in fraud, and therefore could not ripen into a prescriptive title. We do not agree with them in this view of the law. "When the Code declares that

EAST TENNESSEE, V. & G. RY. Co. v. HAYES. (Supreme Court of Georgia. Oct. 28, 1889.) COMPROMISE-FRAUD.

One who has compromised a claim for injuries caused by the carelessness of another cannot, though the contract was fraudulent, and therefore void under Code Ga. § 2751, sue for such injuries without first rescinding the contract by tendering back the consideration received.

Error from city court of Atlanta; VAN EPPS, Judge.

Action by one Hayes against the East Tennessee, Virginia & Georgia Railway Company, for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

possession, to be the foundation of prescription, must not originate in fraud, we think the fraud meant is an actual fraud, a moral fraud, a wrongful act, and not a legal fraud, which the law denominates a 'fraud' regardless of the bona fides of the parties." Ware v. Barlow, 81 Ga. 1, 6 S. E. Rep. 465, and authorities there cited. This is the settled doctrine of this court, and will not be disturbed. Counsel for the plaintiff in error relied on the case of Hunt v. Dunn, 74 Ga. 120. That case seems to be in direct conflict with the uniform rulings of this court. See the cases cited in Ware v. Barlow, supra. It does not cite these cases, nor overrule them, and we are disposed to follow the earlier cases, and those made since the decision in 74 Ga. If the doctrine announced in 74 Ga. be correct, there is no use for the doctrine of prescription. The statement of facts in that case shows that when Cross bought the land he investigated BLANDFORD, J. The defendant in error the title, and thought that the title he pur- brought his action in the court below chased was a better title than Lyle's. There against the plaintiff in error to recover is nothing indicated in the evidence in that damages for injuries which he alleged he case which tended to show that Cross was had received by reason of the carelessness guilty of any actual fraud, moral fraud, or and negligence of its servants and agents. wrongful act. He may have been mistaken To this action the defendant pleaded the in his judgment as to which was the better general issue, and accord and satisfaction, title, but the element of bad faith is want- in this, that before the commencement of ing in the transaction. When the doctrine of prescription is involved in a suit in ejectment, good faith is one of the main elements in the case; and, as we have uniformly held, mere notice of an outstanding

Bacon & Rutherford and P. L. Mynatt, for plaintiff in error. Alexander & Turnbull, for defendant in error.

the plaintiff's action the plaintiff and defendant had agreed upon a settlement, by which the plaintiff was to receive, and did receive, $100 in satisfaction of any injury which he had received from the defendant,

and by which he released all right of action for any damages which he had theretofore received by reason of the carelessness and negligence of the agents and servants of the defendant company. Issue having been taken upon this plea, testimony was introduced by the plaintiff in the court below tending to show that this agreement of settlement, set out in the plea of accord and satisfaction, was obtained from him by the fraud of the plaintiff in error; to which evidence thus offered the defendant excepted. The objection was overruled, and the defendant excepted, and assigned error thereon.

and paid it, which was accepted in satisfaction of the claim of the plaintiff against the bank for the bonds loaned. It was further held in that case that the compromise agreement, unless annulled, is an absolute bar to the action. See, also, case of Cobb v. Hatfield, 46 N. Y. 533, in which it was held that a party cannot retain anything he received under the contract, and yet proceed in disaffirmance thereof. In Evans v. Gale, 17 N. H. 573, the court held that "if one has been induced to make a contract to pay money, or to deliver anything, by such means that he is entitled to rescind the transaction, he Many are the grounds of exception taken must, in order to do so, first restore to the by the plaintiff in error to the rulings and other party whatever may have been redecisions of the court below, but the main ceived in exchange for the money or other question in this case is, could the action thing he seeks to recover back, and to be maintained on the part of the defendant which he would become entitled as his in error without showing that this con- own property, immediately upon the retract of settlement pleaded in the accord scission of the act whose proper effect and satisfaction had been rescinded before would have been to vest it in the other the commencement of the action? Fraud party." It was held by Chief Justice SHAW avoids all contracts. Code, § 2751. Fraud, in Thayer v. Turner, 8 Metc. 550, that "the as a general rule, vitiates all contracts. Coffee v. Newsom, 2 Ga. 442. While fraud may vitiate or avoid all contracts, the contract is nevertheless not void, but voidable only, at the instance of the person defrauded. He who perpetrates the fraud cannot avoid the same, or vitiate it, on account of his own conduct. It may be a good contract until it is avoided by the action or at the instance of him who is defrauded. Though, because of the fraud, the injured party may in certain cases terminate it, and require a restoration of the status quo, in technical language, the contract is said to be voidable, not void. Big. Frauds, 73, 74. Something must be done by the party defrauded before the contract can cease to bind. When that something has been done, and the engagement has been terminated, the contract is said to have been rescinded, and the process by which this result is effected is called “rescission." Id. 74. A contract may be rescinded, out of court, at the instance of the party defrauded, where an agreement has been made, and something of value has been received by the defrauded party, whether vendor or purchaser it matters not. This must, before suit, be tendered back to the wrong-doer in the name of rescission, with demand of return of what the wrong-doer has received. The object of the tender is to effect a restoration of the status quo, and in this class of cases it is a condition precedent to rescission. Id. 75. In the case of Gould v. Bank, 86 N. Y. 75, the court of appeals in New York held that one who seeks to rescind a compromise of a disputed claim on the ground of fraud must promptly, on the discovery of the fraud, restore, or offer to restore, to the other party whatever he has received by virtue of it, if of any value. The tender must be without qualifications or conditions. In that case the action was to recover damages for the breach of an agreement made to return to the plaintiff in that case certain bonds loaned by him to the bank; and a compromise agreement was entered into, whereby the bank agreed to pay to the plaintiff, in satisfaction of its claim against it, a certain sum of money,

plaintiff, as far as it is in his power, shall put the defendant in statu quo, by restoring and revesting his former property in him, without putting him to an action to recover it, before he can exercise his own right to take back the property sold, or bring an action for it." See, also, like cases, Kimball v. Cunningham, 4 Mass. 502; Pierce v. Wood, 3 Fost. (N. H.) 519. So it appears in this case that a return of the money, or an offer to return, received by the plaintiff from the defendant is part of the act of rescission, and so long as the contract remains unrescinded it binds both parties; and the defrauded party has no cause of action for the property or consideration parted with or released under the fraudulent contract until the contract has been rescinded. In other words, he must show that he had a cause of action when he commenced his action. See Tisdale v. Buckmore, 33 Me. 461; Stevens v. Hyde, 32 Barb. 171. This is not an action on the part of the defendant to rescind the contract either at law or in equity, but it is an attempt on his part to recover damages which he has by virtue of his contract of settlement released to the plaintiff in error. It is clear that the contract or agreement of settlement between these parties is binding upon the plaintiff in error, and could not be rescinded or set aside at its instance. If it is binding on one side, it must be binding on the other side, so long as the same exists. It did exist at the time this action was brought. It never had been rescinded, and consequently, while it bound the plaintiff in error, it must of necessity have been binding upon the defendant in error. There are exceptions to the general rule as stated; but the present case falls within the rule stated, and not the exceptions thereto. Besides the cases cited in support of this rule, see, further, Starch Factory v. Lendrum, 57 Iowa, 573, 10 N. W. Rep. 900. See, also, Doane v. Lockwood, 115 Îll. 490, 4 N. E. Rep. 500, and cases referred to in the authorities cited.

As it fully appears in this case that before the commencement of the present action there had been no rescission of the con