George Shiras, Jr.

“ Whether the presumption, in favor of innocent third parties, that Kebler had authority to enter an appearance for Robb and Strong, trustees, and to receive the proceeds of the sale, was sufficiently overcome by the evidence in this case, we need not consider, because we agree with the conclusion of the court below that the acts of Kebler, whether done with or without authority, were subsequently adopted and ratified by the complainants. ”

“ It is claimed that the interest held by Robb and Strong in the lands embraced in the deed and lease between them and Loth was in the nature of an estate in realty, and that, as trustees, they could not themselves, nor by authority given to Kebler, have consented to the sale of such lands in the Gugenheim Case. ”

“ Vos
In the year 1883, James Robb, a resident of Hamilton county, Ohio, died, leaving an estate, and James Hampden Robb, May R. Miltenberger, and Charlotte M. Pancoast, as his surviving children. Charles A. Kebler, an attorney at Cincinnati, was appointed administrator. Mrs. Miltenberger and Ellen W. Robb had claims against the estate. ”

“ To this petition Roelker filed an answer, in which he alleged the existence of the conveyance or mortgage made to him in June, 1887, by Kebler, and that J. Hampden Robb and Charles E. Robb, as trustees, claimed to have had dealings with Charles A. Kebler, acting and professing to act as a partner of him, the said Roelker, whereby they claimed that the said partnership and the said Roelker were indebted to them ”

“ The principles applied in Foundry Co. v. Hersee, 103 N. Y. 26, 9 N. E. 487, and Hays v. Midas, 104 N. Y. 602, 11 N. E. 141, require this construction; for the present contains the element lacking in those cases, viz. knowledge of the fraud practiced by the vendee, and, by reason of it, the plaintiffs were put to their election.
'It is not at all material to the question that the plaintiffs discontinued the first suit before bringing the present to trial; for it is the fact that the plaintiffs elected this remedy, and acted affirmatively upon that election, that determines the present issue. ”

“ Wherefore these defendants pray that said Ferdinand Jelke, Jr., may be made party defendant hereto; and that it may be adjudged that these defendants are creditors of said firm of Kebler, Roelker & Jelke; and that the property in the petition and cross petition of Frederick G. Roelker sought to be sold may be sold ”