if he can, the money that he has paid to the association under the contract embodied in the certificate of stock issued to him. Under the ruling of the majority, the costs of the court below and of the appeal will be paid by the complainant and the sureties on his prosecution bond.

NEIL and BARTON, JJ., concur in reversing the chancellor.

Affirmed orally by supreme court, October 14, 1899.

BRANNON et al. v. CURTIS.

(Court of Chancery Appeals of Tennessee. Dec. 24, 1898.)

APPEAL AND ERROR-VENDOR AND PURCHASER-FAILURE OF TITLE-RECOVERY OF PURCHASE PRICE-RENTAL VALUE-INTEREST

IMPROVEMENTS.

1. Where a master, in an action to recover the purchase price of real estate on failure of title, found that there was due to the vendor a certain amount for rent while the purchaser was in possession, and that the purchaser had expended a certain amount for improvements, but was unable to determine what the value of such improvements were to the vendor or the estate, the subtraction of that amount from the amount the purchaser was entitled to recover instead of the amount of the rent was erroneous.

2. In a suit for an accounting, the master's finding as to the rental value of premises, sustained by the chancellor, will not be disturbed on appeal, where there is evidence to support it.

3. Assignees of a decree for the recovery of purchase money paid on a defective title are not innocent purchasers, and hence, where the vendor subsequently obtained an allowance for rent of the premises occupied by the assignor after obtaining such decree in a suit for an accounting, the amount of such rent may be deducted from the sum allowed by the decree, as against such assignees.

4. Where the purchaser of land with warranty in fee obtains a decree for the return of the purchase money for breach of the warranty, but fails to deliver possession to the vendor, who recovers a decree for rents, she is not only entitled to rents up to the time of the decree in the purchaser's suit, but to the time of the filing of the master's report in the accounting.

5. Where a decree in an action to recover the purchase price of land, for breach of warranty of title, provides that the vendee shall recover the purchase money and interest, taxes paid, etc., and that he shall be charged with annual rents for use of the property, such decree does not preclude the vendor from recovering interest on such rents.

6. Where, by an order for an accounting of the rental value of land held by the vendee after disaffirmance of sale, he is declared entitled to be credited with improvements, so far as they enhance the rental value of the estate, he is not entitled to recover the full value thereof, where some of the improvements did not exist for the entire period of such estate.

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Bill by Elizabeth Curtis against W. D. Brannon and others to review a decree in a certain action by Brannon against Curtis. There was a decree of the supreme court referring the case to a master for an accounting, and from the decree of the chancellor,

sustaining the master's report, both parties appeal. Modified and affirmed.

A. S. Colyar, for complainant. J. B. Daniel, for defendants.

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WILSON, J. This case is before us the second time. When here before, it was appealed to the supreme court, where our decree was reversed or modified, and the cause was remanded to the chancery court for an count between the parties in accordance with the opinion of the supreme court, which is reported in 98 Tenn. 153, 164, 38 S. W. 1073. We need only briefly state that Mrs. Curtis sold and conveyed, with covenants of warranty and seisin in fee, certain real estate to Brannon, situated in Nashville. Her title was not perfect. Soon after the sale of the property, Mrs. Curtis moved to the state of Alabama. Brannon, discovering the defect in his title, filed a bill against her to recover the purchase money paid, with interest, and for permanent improvements put upon the property, and for taxes paid. An attachment was issued and levied upon other real estate of Mrs. Curtis in Nashville to satisfy the sum sued for. Publication was made for Mrs. Curtis. Such steps were taken in the case as resulted in a decree in favor of Brannon, and the property attached by him was ordered to be sold to pay his recovery. The property attached was sold, but, before the sale was confirmed, Mrs. Curtis appeared, and filed a bill of review to set aside the decree against her, and for such relief as was deemed appropriate. Her case, under her bill of review, went to a decree before the chancellor. There was an appeal from his decree to the supreme court, and the case was assigned to this court. From our action in it an appeal was taken to the supreme court, and that court, delivering the opinion cited in 98 Tenn. and 38 S. W., remanded the case to the chancery court for an account between the parties. The case is now before us upon complaints of both parties to the action of the chancellor and his master in taking and stating the account ordered by the supreme court. In the decree of the supreme court remanding the cause, it was ordered that an account be taken, in which Brannon should be allowed: First, the purchase money and interest; second, taxes paid; third, for improvements, so far as they may have enhanced the rental or usable value of the lifeestate, and be charged with the annual rent or use of the premises in the condition in which they may have been from time to time. It may be proper to state, in order that the phrase "rental or usable value of the life estate" may be intelligible in this opinion, without going outside of it, that no one could have interfered with the possession of Mrs. Curtis or her vendee, Brannon, during the life of T. Dixon Overton. When the remand decree of the supreme court reached the chancery court, and was entered as the decree of that.

court, the counsel of Mrs. Curtis moved the chancellor to instruct his master, in taking the account directed by the supreme court, to allow her interest on rents from the end of each year in which the rents accrued, respectively. The chancellor declined to give the instruction asked, on the ground that it was not in accordance with the decree of the supreme court, and the cause was referred for an account on the basis and in the terms used in the decree of the supreme court. Thirtyseven depositions were taken on this reference to the master,-23 in behalf of Brannon, and 14 in behalf of Mrs. Curtis. The evidence of Mrs. Curtis tended to show that the rental value of the property was at least as high as $10 per month while Brannon had it; and the evidence of Brannon tended to show that it was not worth over $5 per month, if so much. The master filed his report about October 20, 1897. He reported: First, the purchase money of Brannon, with interest from the date of his purchase, September 26, 1885, to the date of his report, to be $1,551.50; second, the taxes paid by Brannon, $81.03; third, the total amount going to Brannon, $1,632.63; fourth, the rents going to Mrs. Curtis from September 26, 1885, to October 20, 1897, the date of his report, at $5 per month, to be $724; fifth, that Brannon put repairs and improvements upon the property, from his purchase of it until he filed his bill, which cost him $672. He says, however, in his report, that in his opinion the proof before him did not show to what extent these improvements enhanced the rental or usable value of the life estate, and that therefore he allowed Brannon nothing under this head. Under his report, the balance due Brannon, as of its date, is $960.63. There is a manifest error in the report, on its face,-obviously the result of oversight. He subtracts from the total sum due Brannon, $1,632.63 (the purchase money and interest and taxes), not the rents going to Mrs. Curtis, $724, reported by him, but $672, the cost of the improvements put upon the property by Brannon. Deducting the $724 from $1,632.63, instead of $672, leaves a balance due Brannon, according to his report, of $908.63, instead of $960.63. The solicitor of Brannon filed 14 exceptions to this report. All of these exceptions, except the first, go to the point that the master failed to hold that the rental or usable value of the property for the benefit of the life estate was not increased to the extent of the cost of the improvements put upon the property by Brannon. These exceptions single out each separate improvement and its cost, and the insistence is that each benefited the life estate in its rental value to the extent of its cost. His first exception goes to the point that the master should not have reported rents in favor of Mrs. Curtis after December 10, 1894, the date of his decree assailed by the bill of review of Mrs. Curtis; and the insistence under this exception is that rents since that date are not involved in this suit, and

do not come under the decree of the supreme court. J. B. Daniels and Daniels & Watts except to the allowance of rents after September 10, 1894, the date Brannon filed his bill against Mrs. Curtis, and since January 6, 1895, the date of the assignment of his decree by Brannon to them, because Brannon had, by decree in this cause, assigned his recovery to them; and the insistence by them is that to allow her a credit for rents due from Brannon since the date of Brannon's assignment to them would be to appropriate their property to pay Brannon's debt to her. The solicitor of Mrs. Curtis excepted to the report as follows: (1) Because she was not given rents at $10, instead of $5, per month; (2) because the evidence adduced in behalf of Mrs. Curtis in reference to the rental value of the property was entirely disregarded by the master; (3) because upon the amount allowed no interest was given. The master overruled all the exceptions of all the parties. The chancellor sustained the action of the master, and confirmed his report, and thereupon gave Brannon a decree for the sum reported by the master, and directed the master to sell the property attached in the case of Brannon against Mrs. Curtis, unless the sum was paid within a given time. He ordered that the possession of the property sold by Mrs. Curtis to Brannon be at once restored to her, and devested all title out of him and vested it in her. Mrs. Curtis prayed a broad appeal from this decree. Brannon prayed an appeal from so much of the decree as allowed Mrs. Curtis rents from the date of the filing of his bill and from the date of his decree against her to the filing of the report, and from so much of it as refused to give him the rental value of his improvements to the life estate. Neither party perfected their appeal, but both parties are before us on writ of error.

The rental of the property having been fixed by the master at $5 per month while in the hands of Brannon, and his report in respect thereto having been affirmed by the chancellor, their concurrent finding is binding upon us, if there is material evidence to support it. There is evidence to support it. Indeed, after reading all the 37 depositions, we are inclined to believe that the weight of the direct evidence bearing upon the point supports their finding.

We do not think the contention of Mr. Daniels and Daniels & Watts, as presented in their exceptions to the report of the master, is well taken. They are not innocent purchasers, in the sense of the law, of the decree of Brannon against Mrs. Curtis, obtained under his attachment bill against her, and which decree she sought to review under her bill of review, and under which the account herein questioned was ordered by the supreme court. Neither do we think the contention sound that the master, under the decree of the supreme court, and the reference to him made in accordance with

said decree, was not warranted in allowing of rents after Brannon filed his bill against Mrs. Curtis, and after he obtained his decree. Her bill of review, sustained by the supreme court, was that Brannon had not surrendered possession of the property to her; and, so far as is disclosed by the record, he was still in possession when the report of the master was filed. If he had turned the property over to her before, it was an easy matter to have proved it. As the case was remanded to settle the account between the parties, involving, among other things, this question of rents, it would be a useless circumlocution to put her out of court in this case, to bring an independent suit for rents after the date stated.

The questions of serious difficulty presented are: First, whether Mrs. Curtis is entitled to interest on each year's rent from the end of the year in which it accrued to the date of the report; and, second, whether, under the evidence, Brannon is entitled to recover anything on account of his improvements having enhanced the rental or usable value of the life estate. In the opinion of the writer, the opinion and decree of the supreme court do not settle or preclude, as the chancellor held, the right of Mrs. Curtis to such interest, if otherwise, as a matter of law applicable to the facts, she is entitled to interest. The supreme court, as we understand its decree, makes no adjudication on this matter. Because it said that Brannon was entitled to his purchase money with interest (a matter that was not disputed) does not necessarily involve the further proposition that Mrs. Curtis is not entitled to interest on her yearly rents. The supreme court, in its decree, speaks of "annual rents," and "annual rents going to her." It seems to the writer that it is easily admissible, under the decree of the supreme court, to apply the rents going to her, as they accrued, to the claim against her growing out of the purchase money going to Brannon. The application of this rule, under the situation reported by the master, would effect but little change in the final result reported by him, as to this feature of the account. Under it, at the end of the first year $60 of rent was due Mrs. Curtis. At the same time $54 of interest was due Brannon.

The re

sult would be that the principal or the purchase money due Brannon would be lessened $6 the first year, and a little more each succeeding year, just as the lessened principal decreased the accruing interest. If this method is not admissible under the decree of the supreme court, the writer is of opinion that she is entitled to interest or each year's rental from its accrual to the date of the report of the master. We think from the proof that the improvements put upon the property by Brannon enhanced the rental value of the property as a life estate. The rentals allowed Mrs. Curtis in this case rest In part on these improvements. In other

words, if the improvements had not been made, the property could not have been rented for the sum reported by the master. This is clear from the proof. In fact, there is none to the contrary. The life estate in this case rests upon the life of one Overton. His age is proven, and his expectancy of life is deducible from the tables, if we can assume that he is in reasonable health and of good habits, about which there is no proof in the record. The insistence of Brannon is that the rental or usable value of the life estate has been enhanced by the improvements to the full cost of the improvements, as reported by the master. We cannot assent to this proposition. Some of these improvements were not permanent in their nature, and could not exist for the whole period covered by the life estate. For instance, he papered and painted the house at a cost of $50. There is no evidence that the paper and paint put on the house would last during the life estate. Another item of charge is $65 for furnishing material and building 271 feet of fencing around the lot. There is no proof that this fencing will last through the life estate. There is a charge of $30 for general repairs of grates, hearths, and roofs. Another charge of $27 is for cleaning out privies. So, in all the charges, items enter into them which are for work or for material which, from their nature, could not last for over a few years. Under the decree of the supreme court, Brannon was entitled to be credited with the improvements, "so far as they may have enhanced the rental or usable value of the life estate," and he was chargeable "with the annual rents for the use of the premises in the condition in which they may have been from time to time." The decree, we think, proceeded on the idea (which is an obvious fact) that improvements, as time passed over them, would wear out or deteriorate, and therefore be less effective in enhancing the rental value of the property. It contemplated a consideration of the natural life and service of the improvements as factors in producing or securing rents, in connection or comparison with the expectancy of the life estate. We do not think it would be equitable, or in accord with the fair intent of the supreme court, to give Brannon the benefit of the increased rents owing to his improvements, upon the assumption that the improvements would last, and be a cause of increased rents, during the whole period of the life estate. He gets the benefit, or ought to get the benefit, of the increased rental caused by his improvements up to the date of the report of the master, and for the simple reason that he is charged with them. The exact amount of increase in rents caused by these improvements, and just how long the improvements will last and be serviceable in increasing rents, are, of course, not shown in the proof. Indeed, it is impossible by proof to arrive at exact mathematical results

In

in matters of this kind. The common law, in all its branches, is quite practical. questions of this sort, it seeks to attain practical ends, and an approximation to exactness is the most that can ordinarily be attained. It will not do to say, in our opinion, that these improvements benefited the rental or usable value of the life estate to the extent of the full cost of the improvements; for, under the contention of Brannon, the fair rents of the whole property, with the improvements, would not pay for the improvements under about 11 years. There is no pretense that some of the improvements would last over a few years, and many of them would be completely dead long before the whole rents, based even upon their existence and continuance as factors in increasing rents, would pay for the improvements. Manifestly, when the improvements were out, or ceased to be effective or serviceable in increasing rents, they would be of no value to the rental or life estate. The proof in the case does not seem to have been developed on this line. There is proof that some of the improvements increased the rental value to a certain amount, but there is none that these improvements would last during the life estate, and continue during the life estate to be effective for increasing rents. There is also proof tending to show that, without some of the improvements that were made, the property could not have been rented at all, or for but very little. Some witnesses also testify that some of the improvements enhanced the rental or usable value of the property to the full extent of their cost. So, in view of the state of the proof, it is impossible to say how much the improvements increased the rental or usable value of the life estate. Perhaps it would be impossible by proof to show this with any great degree of exactness. In our opinion, however, a reasonably fair approximation can be reached from the proof on file. The writer is of the opinion that these improvements increased the rental or usable value of this property, as a mere life estate, to the extent of $200, and that Brannon should be credited with this sum in the account. With this modification, and the modification suggested with respect to the interest to be allowed Mrs. Curtis on her annual rents, the decree of the chancellor will be affirmed. The other judges concur.

Affirmed orally by supreme court, January 14, 1899.

DAVIS & RANKIN BLDG. & MFG. CO. v. DICKSON.

(Court of Chancery Appeals of Tennessee. May 20, 1899.) CONTRACTS-SUBSCRIPTIONS-CORPORATIONS. 1. A subscription contract between a building firm and subscribers provided that, after the amount required for the erection of the plant

was subscribed, the subscribers should form a corporation, the shares of which were to be $100 each, to be issued to the subscribers according to their paid-up interest. A subscriber, in the column headed "Number of Shares" wrote the figure 1, and in that headed "Amount of Stock After Incorporation" wrote "1.00." He testified he only subscribed $1, and did not put the figure 1 under the column of "Number of Shares," and that such subscription was accepted for the use of his name to induce others to subscribe; but it was not shown he was a man of special influence, nor that his name would benefit the enterprise. The person taking the subscription swore positively the subscriber placed the figure 1 in the "Number of Shares" column and the figures in the next column, and that the understanding was he was subscribing for $100. Held, that the subscription was for $100.

2. The fact that a subscription paper was on a different sheet from the contract did not release the subscriber, the two sheets being fastened together, and the former having no meaning except as it referred to the contract.

3. The fact that the subscribers were to form a corporation, the stock of which was not to be less than the amount subscribed, and that each stockholder was to be liable only for his subscription, was no defense to a subscriber sued on his subscription by the building firm; the contract also providing that the subscribers were to pay the amount subscribed for the plant when completed, and that any portion not paid should bear legal interest.

4. The contract providing that any surplus of subscription over the price for erecting the plant should belong to the subscribers, the burden was on a delinquent subscriber to show there was a surplus.

Appeal from chancery court, McMinn county; T. M. McConnell, Chancellor.

Bill by the Davis & Rankin Building & Manufacturing Company, for the use of the Chicago Building & Manufacturing Company, against H. W. Dickson. There was a decree for defendant, and plaintiff appeals. Reversed.

Gaston & Madison and W. T. Lane, for appellant. Young Bros., for appellee.

NEIL, J. The bill in this case is filed to collect an obligation of $100, alleged to have been executed by the defendant, along with others, for the purpose of erecting a factory at Grady, McMinn county, this state. It is alleged that the contract was made with the Davis & Rankin Building & Manufacturing Company, and that the Chicago Building & Manufacturing Company subsequently became the owner of the obligation; that, therefore, this suit was instituted for the use of the latter. It is alleged that the obligation is due and unpaid. The defendant sets up the following defenses in his answer: First, that his obligation was for $1 only, and not for $100, and that he has tendered this sum to the collecting agent of the complainant; second, he denies that the Chicago Building & Manufacturing Company is now the owner of the obligation; third, he avers that the Davis & Rankin Building & Manufacturing Company failed to carry out its contract with regard to the factory at Grady, but he does not specify any particulars in which there had been such failure; fourth, that no stock had ever been issued to him in the company

contemplated by the contract. The chancellor adjudged that the defendant owed the complainant nothing, and dismissed the bill. The complainant has appealed and assigned er

rors.

The contract sued upon is entitled as follows: "Contract and specifications for a combined butter and cheese factory on the cooperative and farmers' protective system." It then proceeds: "The Davis & Rankin Building & Manufacturing Company, of Chicago, Illinois, party of the first part, hereby agrees with the undersigned subscribers hereto, party of the second part, to, build, erect, complete, and equip for said party of the second part a combined butter and cheese factory at or near Grady, Tenn., as follows, to wit." Here follow the dimensions of the factory building and a list of the machinery, with a reference to specifications upon the next page. The instrument then continues: "Said building shall be constructed and finished in substantial accordance with the specifications hereon, in a workmanlike manner. The engine and boiler and all other machinery and fixtures shall be properly set up and in good running order before the party of the second part shall be required to pay for said factory. The party of the second part hereby agrees to select and furnish suitable and reasonably level lands for said building, together with well, spring, or reservoir on said lot for the use of the building; and it is further understood that, in case said second party shall fail to furnish said land and water within ten days after the execution of this contract, the Davis & Rankin Building & Manufacturing Company, at its option, may select and furnish land and water in behalf and at the expense of the subscribers. The Davis & Rankin Building & Manufacturing Company further agrees to provide and keep hired at the expense of the stockholders an experienced butter and cheese maker for one year, if desired. The Davis & Rankin Building & Manufacturing Company agrees to erect said butter and cheese factory, as set forth by the above specifications, for forty-nine hundred and fifty dollars, payable in cash when the factory is completed. We, the subscribers hereto, agree to pay the above amount for said cheese and butter factory when completed. Said building to be completed within ninety days, or thereabouts, after the above amount ($4,950) is subscribed. Any portion of the amount subscribed not paid according to contract shall bear legal rate of interest. As soon as the above amount ($4,950) is subscribed, or in a reasonable time thereafter, the said subscribers agree to incorporate under the laws of the state, as therein provided, fixing the aggregate amount of stock at not less than the amount subscribed, to be divided in shares of $100 each. Said share or shares, as above stated, to be issued to the subscribers hereto in proportion to their paidup interest herein; and it is herein agreed that each stockholder shall be liable only for

the amount subscribed by him. All money that shall be paid in or collected upon this contract in excess of the contract price of the plant shall belong to the party of the second part. It is hereby understood that the Davis & Rankin Building & Manufacturing Company will not be responsible for any pledges or promises made by its agents or representatives that do not appear in this contract, and made a part thereof, either in print or writing. For the faithful and full performance of our respective parts of the above contract we bind ourselves, our heirs, executors, administrators, and assigns."

The paper on which the contract was written consisted of two sheets. The first sheet contained what we have written above, and was signed by the Davis & Rankin Building & Manufacturing Company as the first party, a blank being left on that page only for that signature. On the back of that sheet were the specifications already referred to, and then followed, on the next sheet,-being the third sheet,-a blank form for subscriptions as follows:

This contract was dated on the 4th day of October, 1894. On the 2d day of November, 1894, the Davis & Rankin Building & Manufacturing Company transferred it to the Lake Street Manufacturing Block, and the latter company transferred it on the 1st day of December, 1894, to the Chicago Building & Manufacturing Company. The Davis & Rankin Building & Manufacturing Company completed the factory according to the terms of the contract, but when the defendant, Dickson, was called upon for his subscription, he declined to pay it, insisting that he subscribed only $1.

The only question to be determined, then, is whether his subscription was $1 or $100. For the solution of this question we must depend, on the one hand, upon the testimony of the agent who took his subscription (one Pattiana), the face of the paper itself, and the testimony of Mr. Dickson on the other hand. Mr. Dickson testifies in direct terms that he only subscribed $1; that the figure 1 under the column of "Number of Shares" was not put there by him; and that he subsequently tendered, or at least offered to pay, the $1 to D. C. Williams, the collecting agent of the Davis & Rankin Building & Manufacturing Company. The weight of the proof is that he did offer to pay the $1, which was indignantly refused, as being entirely out of reason; that is, the effort to pay $1 for what the company thought was $100. This, it appears, was some