Tucker v. Moreland
35 U.S. 58

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U.S. Supreme Court

Tucker v. Moreland, 35 U.S. 10 Pet. 58 58 (1836)

Tucker v. Moreland

35 U.S. (10 Pet.) 58

Syllabus

Ejectment. B., being seized of a fee in certain real estate in the City of Washington, on 1 December, 1831, executed a deed to R. W. The deed recited, as the consideration, that B., with one Bing, was indebted to T. & T. in the sum of $3,238, for which a promissory note had been given to secure the payment of which the conveyance was made to W., in trust, to sell the property in case of the nonpayment of the debt, and the same was sold on 7 March, 1833, for that purpose, by W. as trustee, and was by him conveyed to T. & T., the purchasers. B. continued in possession of the property until February 8, 1833, when he conveyed it, with other property, to his mother, E.G.M., in consideration of $1,138 due to her, for which a suit had been instituted, and of other advances made to him. At the time of the sale by W., notice was given of the title of E.G.M. to the premises, and she publicly claimed the same as her absolute right. Evidence at the trial of an ejectment brought by T. & T. against E.G.M., was given to prove that at the time of the execution of the deed by B. to W., B. was an infant under twenty-one years of age; and that at the time the deed to E.G.M. was made he was of full age.

The decision of Lord Mansfield in Zouch v. Parsons, 3 Burrow 1804, was perfectly correct. The act of the infant which was held valid by the court was precisely such an act as the infant was bound to do and would have been compelled to do by a court of equity.

The deed given by B. to E.G.M. was a complete disaffirmance and avoidance of his prior deed to W., and the deed of W. to T. & T. did not convey such a title to them as would enable them to sustain an action of ejectment for the property.

To assume as a matter of law that a voluntary and deliberate recognition by a person after his arrival at age of an actual conveyance of his right during his nonage amounts to a confirmation of such conveyance, or to assume that a mere acquiescence in the same conveyance, without objection for several months after his arrival at age, is also a confirmation of it are not maintainable. The mere recognition of the fact that a conveyance has been made is not per se proof of a confirmation of it.

It is apparent upon the English authorities that however true it may be that an infant may so bind himself by deed in certain cases, as that in consequence of the solemnity of the instrument, it is voidable only, and not void, yet that the instrument, however solemn, is held to be void if upon its face it is apparent that it is to the prejudice of the infant.

There is no doubt that an infant may avoid his act, deed, or contract by different means according to the nature of the act or the circumstances of the case. He may sometimes avoid it by matters in pais, as in case of a feoffment by an entry if his entry is not tolled; sometimes by plea, as when he is sued upon his bond or other contract; sometimes by suit, as when he disaffirms a contract made for the sale of his chattels and sues for the chattels; sometimes by a writ of error, as when he has levied a fine during his nonage; sometimes by a writ of audita querela, as

Page 35 U. S. 59

when he has acknowledged a recognizance, or statute, staple, or merchant; sometimes, as in the case of an alienation of his estate, by a writ of entry, dum suit infra aetatem, after his arrival at age.

Where the act of the infant is by matter of record, he must avoid it by some act of record (as for instance by a writ of error or an audita querela) during his minority. But if the act of the infant is a matter in pais, it may be avoided by an act in pais of equal solemnity or notoriety, and this, according to some authorities, either during his nonage or afterwards, and according to others at all events after his arrival of age.

The deed of B. to E.G.M., being of as high a nature as the original deed to W., was a valid disaffirmance of the first deed.

In many cases the disaffirmance of a deed made during infancy is a fraud upon the other party. But this has never been held to be sufficient to avoid the disaffirmance, for it would otherwise take away the very protection which the law intends to throw around him to guard him from the effects of his folly, rashness, and misconduct.

An action of ejectment was instituted in the circuit court for the recovery of certain real estate in the City of Washington, claimed by the plaintiffs in error under a deed executed by Richard N. Barry, on the first day of December, 1831, to Richard Wallach.

The deed recited that Richard N. Barry and George Bing stood indebted to Tucker and Thompson, of the City of Washington, in the sum of $3,238, for which they had passed to them their joint and several promissory note, payable in six months, and to secure the payment of which note with the interest in twelve months, Richard N. Barry had agreed to execute the same. The deed, then, conveyed to Richard Wallach and his heirs, the property in controversy, in trust to sell and dispose of the same, and after appropriating the proceeds of the sale to the payment of the debt and interest and expenses of sale, to pay over the residue to the grantor. It also contained covenants on the part of Barry to keep the buildings on the premises insured against loss by fire and to transfer the policies to the trustee, and for further or other deeds of conveyance to the purchasers of the premises in order to carry the purposes of the trust into complete effect.

The defendant derived title to the same property under a deed of indenture executed by the same Richard N. Barry on 8 February, 1833, by which the premises in controversy and

Page 35 U. S. 60

other lots of ground were conveyed to her, she being the mother of Richard N. Barry,

"in consideration of the sum of $1,138.61, which he owed to the said Eliza G. Moreland, for the recovery of which she had instituted a suit in the Circuit Court of the United States for the District of Columbia, and of other sums of money by her to him from time to time paid and advanced, a particular account of which had not been kept."

On the trial of the cause it was admitted that Barry was seized in fee of the premises when be executed the deed to Richard Wallach, and that after the execution thereof, he continued in possession until 8 February, 1833, when the deed to the defendant was made, and which deed was duly recorded.

Evidence was also given by the defendant tending to prove that under the deed to her, she took possession of the premises and continued to hold possession of the same up to the time of the trial of the cause.

The plaintiffs gave evidence to the jury to prove that Richard Wallach, the trustee mentioned in the before-mentioned deed of trust, duly advertised the sale of the lot and premises in the declaration mentioned and sold the same to the plaintiffs on 23 February, 1833, and made to them a deed for the same on 7 March, 1833.

The defendant gave evidence to prove that at the time of the sale made by Richard Wallach as aforesaid, the said defendant gave public notice of her title to the said lot and premises, and there publicly claimed the same as of her absolute right.

Upon which said evidence, so admitted and given, the counsel for the defendant prayed the court to instruct the jury that if they believed the evidence so admitted and given as aforesaid to be true, that then they ought to find their verdict for the defendant, which instruction the court refused to give.

To this refusal the defendant excepted.

In addition to the evidence given as aforesaid, the defendant gave evidence to the jury to prove that at the time the said Richard Barry made and executed his deed as hereinbefore mentioned to Richard Wallach, of 1 December 1831, he the said Richard Barry was an infant under the age of twenty-one years, and that at the time he made his deed to the defendant

Page 35 U. S. 61

of 8 February, 1833, before mentioned, he the said Richard Barry was of full age -- that is to say upwards of twenty-one years of age.

Whereupon the counsel for the defendant prayed the court to instruct the jury that if, upon the whole evidence aforesaid, so given to the jury, they should believe the facts to be as stated as aforesaid, then the deed from the said Richard Wallach to the plaintiffs, as hereinbefore mentioned, does not convey to the said plaintiffs any title which would enable them to sustain this action.

Which instruction the court gave, and to which the plaintiffs, by their counsel, excepted.

The plaintiff, further to maintain and prove the issue on his side, then gave in evidence, by competent witnesses facts tending to prove that the said Richard N. Barry had attained the full age of twenty-one years on the fourteenth day of September, 1831;, and that in the month of November, 1831, the said defendant, who was the mother of the said Richard, did assert and declare that said Richard was born on 14 September, 1810, and that she did assert to Dr. McWilliams, a competent and credible witness, who deposed to said facts and who was the accoucheur attending on her at the period of the birth of her said son, that such birth actually occurred on the said 14 September 1810, and applied to said Dr. McWilliams to give a certificate and deposition that the said day was the true date of the said birth. The counsel of the plaintiffs requested the court to instruct the jury:

1. That if the jury shall believe from the said evidence that the said Richard N. Barry was of full age and above the age of twenty-one years at the time of the execution of said deed to said Wallach, or if the defendant shall have failed to satisfy the jury from the evidence that said Barry was, at the said date, an infant under twenty-one years, that then the plaintiff is entitled to recover.

2. Or if the jury shall believe from the said evidence that if said Richard was under age at the time of the execution of said deed, that he did, after his arrival at age, voluntarily and deliberately recognize the same as an actual conveyance of his

Page 35 U. S. 62

right, or during a period of several months acquiesce in the same without objection; that then said deed cannot now be impeached on account of the minority of the grantor.

3. That the said deed from the said Richard N. Barry to the defendant, being made to her with full notice of said previous deed to said Wallach, and including other and valuable property, is not so inconsistent with said first deed as to amount to a disaffirmance of the same.

4. That from the relative positions of the parties to said deed to defendant at and previous to its execution, and from the circumstances attending it, the jury may infer that the same was fraudulent and void.

5. That if the lessors of plaintiff were induced, by the acts and declarations of defendant, to give a full consideration for said deed to Wallach and to accept such deed as a full and only security for the debt bona fide due to them, and property bona fide advanced by them, and to believe that the said security was valid and effective, that then it is not competent for said defendant in this action to question or deny the title of said plaintiff under said deed, whether the said acts and declarations were made fraudulently and for the purpose of practicing deception or whether said defendant from any cause willfully misrepresented the truth.

Whereupon, the court gave the first of the said instructions so prayed as aforesaid, and refused to give the others.

To which refusal the council for the plaintiff excepted.

The court having refused the 2d, 3d, 4th, and 5th instructions prayed by the plaintiff, and the counsel, in opening his case to the jury, contending that the questions presented by the said instructions were open to the consideration of the jury, the counsel for the defendant thereupon prayed the court to instruct the jury that if from the evidence so as aforesaid given to the jury and stated then prayers for the said instructions they should be of opinion that the said Richard was under the age of twenty-one years at the time he made his deed as aforesaid to the said Richard Wallach, under whom the plaintiffs claim their title in this case, and that at the time he made his deed as hereinbefore mentioned to the defendant, he was of full age, that such last-mentioned

Page 35 U. S. 63

deed was a disaffirmance of his preceding deed to him, the said Richard Wallach, and that in such case the jury ought to find its verdict for the defendant, and that the evidence upon which the 2d, 3d, 4th, and 5th instructions were prayed by the plaintiff as aforesaid, which evidence is set forth in the instructions so prayed, is not competent in law to authorize the jury to find a verdict for the plaintiff upon any of the grounds or for any of the reasons set forth in the said prayers, or to authorize them to find a verdict for the plaintiff if they should be of opinion that the said Richard Barry was under the age of twenty-one years at the time he made his deed as aforesaid to the said Richard Wallach.

Which instruction the court gave, as prayed, and the counsel for the plaintiffs excepted thereto.

The plaintiffs prosecuted this writ of error.

Page 35 U. S. 65

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