GOIN v. CINCINNATI REALTY CO., 200 F. 252

DENISON, Circuit Judge (after stating the facts as above). We do not think it is open to us to consider the question whether the order of the common pleas court was void or only voidable, nor the question whether complainant’s conduct since her majority should bar heil from relief in a court of equity, nor the question whether the lease in all its provisions may be sustained upon the principles of agency and ratification and without any dependence on the court order.

While a perpetual lease, or, what is the same thing, a lease for a term “renewable forever,” is not known in some jurisdictions, it seems to be not uncommon in Ohio, and the power of fully competent parties to make such a lease is not challenged. An option to purchase is a common feature of leases. There is, then, nothing abnormal or necessarily invalid in the instrument, taken as a whole, and complainant is in the ordinary position of the minor who, after her majority, attacks some instrument made by another in her behalf during her minority. It is a mistake to regard this suit as an attack upon a decree.

The decree was only a means to an end. The end was the contract of lease. A decree is pronounced by the law, perhaps in invitum. It may often be valid in part and void in part for lack of power. There would be a natural presumption that the court intended to go to the limit of its power and no further. Not so with a contract. Its parts are normally interdependent. A

part can be stricken out, while part remains, only if separability clearly appears. Complainant did not, in this case, attáck the lease as an entirety. She only asked to have cut off from it' that feature which she considered undesirable. The prayer of her bill is “that the said alleged privilege of purchase of the premises described herein and all language of agreement relating thereto may be set aside and annulled,” etc.

True, in connection with several clauses to the same effect with that just quoted, there is a prayer “that complainant be decreed to be the owner of said premises and entitled to the possession of the same at the termination of the life estate of her parent”; but, taking the case altogether, this should be construed as a pra3rer that she be declared the owner subject to the other provisions of the lease.

If there was ambiguity in this prayer, it is removed by the statement in appellant’s brief that the purpose of the suit is to set aside the privilege' of purchase and remove it as a cloud upon the title, and by the statement of counsel upon the oral argument that they were not, in this suit, attacking the lease itself, but only this provision.

We are not concerned with complainant’s motives in taking this position, but it is not improbable that a perpetual ground rent of $20,-500 per year, with taxes paid, and under all the conditions here existing, would be worth more than $500,000, if the purchase option did not exist. So we find complainant (so far as the present suit is concerned) acquiescing in this lease, and allowing it to stand for her benefit as soon as the life tenancy ceases. She thereby is, for the present, preserving for herself the ultimate benefit of the agreed rental, the tax payments, and all other burdens put upon the lessee.

At the same time, she proposes to repudiate the purchase option, which formed a part of the contract and a part of the consideration for the lessee’s agreement to pay rent. We see no way in which these can be considered as two contracts not interdependent. Each

part is naturally a consideration for the other part. There is no room to conclude that the lessee would have agreed to pay the stipulated rent unless he had been given the option to purchase. This option is not an afterthought, thrown in to make good measure after the bargain was made. It formed one of the mutual conditions negotiated before the application was made to the court. Under familiar rules, complainant cannot be heard to attack one part only of an entire contract (Barrie v. Earle, 143 Mass. 1, 5, 8 N. E. 639, 58 Am.

Rep. 126, and cases cited), nor be allowed to ratify in part only, so as to get the benefits and avoid the burdens (Bacon v. Johnson, 56 Mich. 182, 185, 22 N. W. 276).

We do not intend to characterize this bill as in itself a final ratification by complainant of the lease, but rather as a mistaken and abortive attempt to get her claims into court; and if complainant, or another in similar interest, shall hereafter elect to attack the validity of this lease as an entirety, the complaint must receive such attention as its merits deserve and the rules of law or equity permit; and the question might then arise whether the option privilege was so solely for the lessee's benefit that he could, by waiver, cure any general invalidity resulting from the presence of the privilege; but, until such general attack is made, there is nothing for the courts to decide.

The decree should be affirmed, with costs.