I concur with Mr. Justice Greenhaum in a reversal of this judgment. If we assume that the transactions, which are the basis of this action, were between the plaintiff and the defendant, and that Anna Stumpf is in no way liable upon any of the instruments signed by her, then and in that event the action brought by the plaintiff is in its nature an equitable one of which the Municipal Court has no jurisdiction. The defendant conveyed the property, purchased under the contract of October 31, 1906, in May, 1907; and purchase-money mortgages were executed covering the premises so purchased. Constructively, then, the plaintiff, if by such deed he became the owner, was in possession of the premises, and was actually so in possession, so far as by any evidence appears in the record. Before an infant can rescind a contract, if he has received any benefit thereunder, he must account for the benefit or return its equivalent. Hice v. Butler, 160 1ST. T. 578. And to determine what benefit, if any, the plaintiff has received by reason of such possession, would necessitate an accounting by him for the use, rents or profits of the property between the time of the conveyance to him and the time of his arriving at age and repudiation by him of the contract. Although the action is one for money had and received, such an action is in its nature equitable; and the Municipal Court,- under the circumstances disclosed by the evidence in this case, would, in my opinion, have no jurisdiction. Adequate relief requires a cancellation of the instruments given to the Halley Land and Improvement Company — the loaning company -that advanced the money for improvements on the property.
Judgment reversed and new trial ordered, with costs to appellant to abide event.