Whitfield, O. J.,
delivered the opinion of the court.
At the time of the death of Mrs. Ray, B. J. Barrier, Jr., became the legal owner of the entire Taylor tract of land. His mother had first been married to Mr. Barrier. The only issue surviving from this marriage was B. J. Barrier, Jr., the appellant. After the death of Mr. Barrier, the widow intermarried with Mr. Ray, and by him had one son, the appellee. The appellant and appellee were, therefore, half-brothers. Mr. Barrier ’and Mr. Ray had bought, each, an undivided half interest in the Taylor tract of land. These transactions occurred before the code of 1880 'abolished dower. Mrs. Barrier, upon her husband’s death, was entitled to dower in that half of the Taylor land bought by her husband Barrier, which dower was never assigned. Upon her death, the dower interest expiring, B. J. Barrier, Jr., became sole owner of that undivided half interest. After the marriage of the widow Barrier to Mr. Ray, and before the birth of their son, the appellee, Mr. Ray conveyed his undivided half interest to *244Mrs. Kay, then his wife, for her life, remainder to two Barrier sons then living, of whom B. J. Barrier, Jr., was one. The other Barrier son died, and B. J. Barrier, Jr., inherited this interest. Of course, upon the death of Mrs. Kay, her life estate in this land expired, and appellant became sole owner of that half interest, also, in the Taylor land. So that, as stated, on the death of Mrs. Kay the appellant became the sole owner of the legal title of the entire Taylor land. On the 4th of June, 1890, Mrs. Kay made two deeds, by one of which she conveyed to I. M. Kelly, as trustee for J. H. Kay, Jr., an undivided half interest in certain chattels and household effects, and a buggy and a horse, and attempted to convey an undivided half interest in the said Taylor land to I. M. Kelly, trustee, to be by him conveyed to J. IT. Kay, Jr., upon his arrival at majority. By the. other deed she conveyed to I. M. Kelly, trustee, for the benefit of B. J. Barrier, Jr., “all of the cash money, notes, choses in action and other evidences of indebtedness” belonging to her at the date of the deed; also one undivided half interest in the cattle on the home place; also the only bedroom set of furniture, and also an undivided half interest in the bedding and the household effects of every kind; also one clock, and whatever interest she might have in the lands of her husband, B. J. Barrier, Sr.,' situated in Yazoo, Madison and Neshoba counties, in this state, and owned by her husband, B. J. Barrier, Sr., at his death. She, however, reserved the right during her life to make any expenditure out of the notes, cash, etc., she might see proper; and she further charged the cash, notes, etc., with the family expenses, for debts, burial expenses, the cost of erecting a monument over herself, and of removing the remains of her deceased children to the graveyard at Concord Church, and with the payment of a legacy of $100 to Miss Eva' Barrier, her neice; and the balance; if any, was to be used by the said trustee for the benefit óf B. J. Barrier, Jr., as he might require. In this'last deed thé *245grantor says: “The party of the first part (the mother) has not conveyed to said trustee for the benefit of said B. J. Barrier, Jr., any real estate, except whatever interest she might have in his father’s lands, because said minor has inherited' from his father and the deceased brother sufficient real estate to make him own about an equal amount, in value, to that owned by the party of the first part, and this day conveyed by her to said party of the second part (Kelly) as trustee for her son J. Harvell Ray.” These deeds were made on the same day, mutually referred to. each other, not for description of the property, merely, and are plainly parts of one transaction, and to be construed as one instrument. The mother, having executed these deeds on the 4th of June, 1890, died June 10, 1890.
We think it perfectly clear that Mrs. Ray believed herself to be owner of the undivided half interest in the Taylor land which she attempted to convey to her son, J. BE. Ray, Jr., and in which her husband had conveyed to her a life interest only; and, second, that she believed her Barrier son, the appellant, owned the other undivided interest in that same land, which came through his father, subject to her dower interest. She also thought she had some' interest in certain lands in liadison and Neshoba counties, which she conveyed to her son B.' J. Barrier, Jr.
In July, 1890, Kelly qualified as guardian to B. J. Barrier, Jr., in Madison county. On the 16th of November, 1897, B. J. Barrier, Jr.,-became 21 years of age; and in March, 1898, Kelly made his final report as trustee and guardian of Barrier, reporting a settlement between him as trustee and guardian, according to the terms of the deed of Mrs. Ray to Kelly for Barrier’s benefit, and was discharged by the court. Some four years thereafter, to wit: on December 30, 1901, appellant filed this bill against his late guardian, Kelly, and his half-brother, the appellee, claiming that he was owner in fee simple of the entire Taylor tract of land, one undivided half interest in which *246his mother had attempted, as shown, to convey to his half-brother, J. H. Ray, Jr. He prayed that this deed should be canceled as a cloud upon his title; and, second, that the court should decree him possession of, and ownership in fee simple of, the entire Taylor tract of land; third, that Kelly, trustee, should be required to account and pay over to-him the other half of the rents and profits from said land, which he had collected since and including the year 1890, together with the interest at legal rate thereon; and, fourth, that in case Kelly had paid these rents to J. H. Ray, Jr., he, the said Ray, should be required to account and pay over same to him. The appellee, at the May term, 1902, demurred to this bill upon the ground that it showed no cause of action, and that the appellant did not offer to do equity. This demurrer was sustained by the court, and sixty days allowed complainant in which to amend his bill, or file an amended bill in the case. The complainant declined to amend his bill in the sixty days allowed him, whereupon the court below dismissed the bill, and from that order this appeal is prosecuted.
It will be observed that the bill was dismissed under the principle of equitable election; the court holding that the appellant had' made his election in accordance with the instrument, and not against it, and that he could not now repudiate that election. It will be specially noted that in this case it is clear, first, that the mother believed herself to be the owner of the land she attempted to convey to the appellee, and hence could not have intended to convey that land as being the appellant’s property, and, second, that nevertheless she did in fact attempt to convey what was not hers, but plaintiff’s property. It is clear, therefore, on the face of the instrument, that she did convey, or attempt to convey, an undivided half interest which was not her property, but wholly the property of appellant, and by the same instrument did convey to him, first, the surplus left from the profits of cash, notes, etc.; second, certain specific *247household effects; third, an undivided half interest in the cattle on the place; and, fourth, whatever interest she had in certain lands in the three counties named.
One of the fundamental differences between the doctrine of equitable election, as we administer it, and as it was administered under the Roman civil law, from which it was borrowed, is that with us the doctrine of equitable election applies, whether the donor was or was not aware that he was dealing with property not his own. 1 Pom. Eq. Jur., sec. 463; 1 White & Tudor’s Leading Cases in Eq., p. 546; note to Streatfield v. Streatfield; and the Am. & Eng. Enc. Law (2d ed.), vol. 2, p. 68 (2). Another difference between the two systems is that under the civil law the doctrine of equitable election was confined to wills. See Mr. Swanston’s notes to Dillon v. Parker, 1 Swanston, 359, and note, above referred to, in 1 White & Tudor’s Leading Cases in Eq., vol. 1, pt. 1, pp. 513-541. With us the doctrine applies to deeds, wills, and all other instruments whatsoever. One of the differences between the ■application of the principle to a will and to a deed is that “in the case of deeds, such as settlements, a person may be compelled to elect, although there is not a clear intention on the part of the settler to dispose of property which is not his own; and this on the ground that a person cannot accept and reject the same instrument.” See Am. & Eng. Enc. Law (2d ed.), vol. 2, p. 69 (5), and note 2. Lord Redesdale said of this in Birmingham v. Kirwan, 2 Schoales & L. 444, cited in said note, that this difference arose “because deeds are generally matter of contract, and the contract is not to be interpreted otherwise than as the consideration, which is expressed, requires.” We note this distinction, though it is immaterial in this case, since it is perfectly manifest here that Mrs. Ray did intend to convey the property she attempted to convey to Kelly for her son, Ray. There is no doubt about her clear intention so to convey, and ■no doubt that clear intention appears on the face of the instru*248ment; and just as little doubt that she meant to convey it as her own, the fact being that it was complainant’s property. The doctrine of equitable election is, in our judgment, not founded on intention, as held by so many cases, but is, as stated by Mr. Pomeroy, “a positive rule of law, covering the devolution and transmission of property by instruments of donation, and is invoked wholly irrespective of the intention of the donor, although in the vast majority of cases it undoubtedly does carry into effect the donor’s real purpose and desire.” The doctrine rests, as we think, upon the equitable principle that he who seeks equity must do equity. We approve and adopt the statement of the doctrine by the United States Supreme Court in Peters v. Bain, 133 U. S., 395; 10 Sup. Ct., 354; 33 L. Ed., 696" court="SCOTUS" date_filed="1890-03-03" href="https://app.midpage.ai/document/peters-v-bain-92700?utm_source=webapp" opinion_id="92700">33 L. Ed., 696, as follows: “The doctrine of election rests upon the principle that he who seeks equity must do it, and means, as the term is ordinarily used, that, where two inconsistent or alternative rights or claims are presented to the choice of a party by a person who manifests the clear intention that he should not enjoy both, then he must accept or reject one or the other, and so, in other words, that one cannot take a benefit under an instrument, and then repudiate it.” In Cooper v. Cooper, L. R. 7, H. L. 67, Lord Chancellor Cairns, in explaining that the doctrine is applied without reference to whether the donor knew that the property of which he attempted to dispose belonged to another, said: “The rule .... does not proceed either upon an expressed intention, or upon a conjecture of a presumed intention, but it proceeds on a rule of equity, founded upon the highest principles of equity, and as to which the court does not occupy itself in finding out whether the rule was present or was not present to the mind of the party making the will.” Mr. Pomeroy makes the matter exceedingly clear in section 464: “A disposition calling for an application of the doctrine of election may be made under the two following different states of circumstances: Either the donor may know *249that the property which he assumes to deal with is not his own, but belongs to another, and notwithstanding such knowledge he may assume to give it away, or he may give it away, not knowing that it belongs to another, but erroneously and in good faith supposing that it is his own. In the first of these two cases the presumption of an intention on the part of the donor to annex a condition to the gift calling for an election by the beneficiary plainly agrees with the actual fact. At all events, it violates no probabilities. When a testator devises an estate belonging to A to some third person, and at the same time bestows a portion of his own property upon A, he undoubtedly must rely upon the benefits thus conferred upon A, as an inducement to a ratification by A of the whole disposition. To give A the property which the testator was able to dispose of, and at the same time to allow him to claim his own estate, which had been devised to the third person, by his own paramount title, would be to frustrate the evident intention of the testator. In the second case, where the testator or other donor erroneously supposes that the property which he undertakes to give away is in fact his own, the doctrine of election applies with the same force and to the same extent as in the former. Here it is, in the nature of things, simply impossible that the donor could actually have had the intention which the theory imputes to him, since he really believes himself to have a disposing power over the property, or to be dealing with property which is his own.”
This case falls squarely within the second category stated'by Mr. Pomeroy, and it is simply impossible that the grantor, Mrs. Ray, could have had the intention imputed to her by the theory, since she believed herself to be disposing of her own property. We prefer, therefore, the broader view of the supreme court of the United States, of Mr. Pomeroy, and of Lord Chancellor Cairns, that the rational basis of the doctrine is not to be found in thé supposed intention of the donor, but in the equitable *250principle that he who seeks equity must do equity. We think this doctrine applies in full force to this case. Appellant has made his election. He has been receiving since 1890 whatever surplus has been yielded from the cash, notes, etc. He has retained the specific personal gifts, and for four years after his arrival at age, and after a full settlement with his guardian has been made, has made no objection; all the while knowing, as is clear from the pleadings, that his half-brother was in reception of the rents and profits of the lands attempted to be conveyed to him by his mother. Equity will not permit him now to rip up the whole transaction, alter the entire situation, and repudiate his election once definitely made. It is true that the equitable doctrine of election is administered upon the principle of compensation, and not of forfeiture, though, as said by Gibson, C. J., in Lewis v. Lewis, 1 Harris, 79, 53 Am. Dec., 443, there may be some few cases in which the principle of forfeiture alone can be applied. In Am. & Eng. Enc. Law (2d ed.), vol. 2, p. 115 (3), the rule is thus expressed: “According to the great weight of authority, as now conclusively established, the refractory donee does not, in such event, forfeit the benefit or estate conferred upon him, but is bound only to make compensation out of it to the disappointed donee to the extent of the value of the property of such refractory donee which the donor has attempted to bestow upon such disappointed donee. In such case a court of equity treats the'refractory donee as a trustee, and will sequester the benefit intended for him, in order to secure compensation to the disappointed donee. But the excess does not go to the personal representative of the testator, as if undisposed of, but is to be given to the refractory donee; the purpose being satisfied, for which alone the court controlled the legal right. See, also, 1 Pom. Eq. Jur., sec. 468, and note 1 on page 636, and 1 White & Tudor’s Leading Cases in Eq., note, supra, vol. 1, pt. 1, p. 543. And it follows from this principle of compensation that, since appellant in this case *251had his election to claim against the instrument and retain his own property, he might, in case the surplus arising from the cash, notes, etc., and proceeds of other personal property given him, had exceeded in value his property conveyed to his brother, have retained, in addition to his own property, the difference between the value of that property and such surplus, and it is earnestly urged that the bill does not show anything but the mere settlement between him and his guardian, or that he had received a dollar therefrom, and that the bill further does not show that there was any surplus left from said cash, notes, etc. But the perfect reply to this is that all this lay peculiarly within the knowledge of complainant, and, under the rule that the pleadings must be taken most strongly against the pleader, it must be presumed that if the fact had been that there was no such surplus from such cash, notes, etc., he would certainly have averred it.. The bill avers the rents of the entire Taylor tract of land to be only $300, and it may be that appellant has derived from cash, notes, etc., and other personal property, more, in value, than the undivided half interest in said land attempted to be conveyed by his mother to appellee was worth. At all events, it was the duty of complainant to fully and particularly disclose the truth as to this— most especially so when he comes into a court of conscience, pressing his legal rights to their utmost limit, without offering to return anything he may have received. It is true, he was an infant up to his arrival at age in November, 1891. But he waited, under the peculiar circumstances we have set out, four years thereafter, to file this bill. We are clearly of the opinion that the learned court below was entirely right in applying to him the principle of equitable election.
Not only did the court below give him sixty days in which to amend this bill, but said time was given, if he chose so to use it, in which to file an amended bill; and the inference from his failure to avail himself of leave to do either is irresistible *252that he had stated his case as strongly as it was possible to state it, and that, had he made the full disclosure equity required at his hands in the situation, it would appear that he had elected to keep what his mother gave him, because- it was worth more than the land belonging to him, which she had conveyed to Kelly for his brother’s benefit.
Affirmed.