No. 1446.

#### Kelsey v. Snyder.

The substance of the bill and amendment thereto in this case may be stated under two heads: 1st. That prior to the death of Ira F. Benson appellant claims to have been the equitable owner of an undivided one half interest in the Milk Maid ” lode, a silver mine situated in Ouster county, Colorado, the legal tit'e being in Benson in trust for her. 2d. That after the death of Benson, she, by means of false and fraudulent representations, was induced to execute an assignment to Fannie Snyder to a part of her claim against the estate of Benson to the extent of $2,000, and to direct his administrator to pay from dividends said $2,000, and to take from Fannie Snyder a deed to the one half interest in said mine as the consideration therefor, charging- that said assignment was fraudulently obtained and was without any consideration, that she was already the owner of the undivided half interest in the mine, and that Fannie Snyder had no interest in, or right to convey the same. She prays that she may be decreed to be the owner in fee simple of the one half interest in the mine, and that the agreement by he;' with Fannie Snyder assigning $2,000 of her claim may be de *646dared fraudulent and void. It is first insisted that the court erred in sustaining the demurrer to parts of the amended bill. There was no error in sustaining the demurrer. The parts of the bill to which the demurrer was sustained were not relevant or germane to the bill or to the amended bill. It is also insisted that the court erred in sustaining exceptions to some of the objections of the complainant as to conversations or transactions with Benson in his lifetime. The court find i that upon the introduction of Mrs. Kelsey’s evidence, defendants objected to such parts as referred to what passed between her and Benson, on the ground that Benson was dead and defendants objecting as heirs and administrators respectively. The objection was made in apt time and the evidence was incompetent under section 2, Chap. 51, R. S. Ill. While the court finds that some of the exceptions taken by the appellant to the evidence should have been sustained, still it is satisfied that there is in this record sufficient evidence against which no valid objection could be urged to sustain the decree in this case. The court also finds that appellant, after the sale by Fannie Snyder to the complainant of one half interest in this mine, made a contract with Horine Bros. & Co., for the sale to them of her half interest in this mine. It is dated September 18, 1880, and provides for the payment to her of $2,000, $500 cash and $1,500 out of the first yield of the mine. On this contract she received $500 ; the contract still remains uncollected and unsatisfied. She has by this contract made it impossible for her to place the other party in statu quo. The rule is inflexible that a party can not rescind a contract of sale and at the same time retain the consideration received. “He who seeks equity must do equity. ” Smith v. Battenhen, 109 111. 550. It is claimed that the proceeds of this sale are assets in the hands of the administrator. This sale did not place in the hands of the administrator one dollar. The administrator had nothing to do and could have nothing to do with the mine in Colorado He did not assume to have anything to do with it and no part of the $2,000 was derived from it. His appointment gave him power over the qsersonalty and the right to sell the real estate of Benson in this State for the payment of debts under the order of the county court. Finding no substantial error in this decree it is affirmed.

Opinion by

Welch, J.

*647Opinion filed June 14, 1886.

Attorneys, for appellant, Mr. Granville M. Browning; for appellee, Mr. Charles A. Hill.

Judge below, C. Blanchard.