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
MR. JUSTICE STORY delivered the opinion of the Court.
The original action was an ejectment brought by the plaintiff in
error against the defendant in error, and both parties claimed
title under Richard N. Barry. At the trial of the cause upon the
general issue, it was admitted that Richard N. Barry, being seized
in fee of the premises sued for, on the first day of December,
1831, executed a deed thereof to Richard Wallach. The deed, after
reciting that Barry and one Bing were indebted to Tucker and
Thompson in the sum of three thousand two hundred and thirty-eight
dollars, for which they had given their promissory note payable in
six months after date, to secure which the conveyance was to be
made, conveyed the premises to Wallach in trust to sell the same in
case the debt should remain unpaid ten days after the first day of
December then next. The same were accordingly sold by Wallach, for
default of payment of the note, on 23 February, 1833, and were
bought at the sale by Tucker and Thompson, who received a deed of
the same on 7 March of the same year. It was admitted that after
the execution of the deed of Barry to Wallach, the former continued
in possession of the premises until 8 February, 1833, when he
Page 35 U. S. 66
executed a deed including the same and other parcels of land, to
his mother, Eliza G. Moreland, the defendant, in consideration (as
recited in the deed) of the sum of one thousand one hundred and
thirty-eight dollars and sixty-one cents, which he owed his mother,
for the recovery of which she had instituted a suit against him,
and of other sums advanced him, a particular account of which had
not been kept, and of the further sum of five dollars. At the time
of the sale of Wallach, the defendant gave public notice of her
title to the premises, and she publicly claimed the same as her
absolute right. The defendant further gave evidence at the trial to
prove that at the time of the execution of the deed by Barry to
Wallach, he, Barry, was an infant under twenty-one years of age,
and at the time of the execution of the deed to the defendant he
was of the full age of twenty-one years.
Upon this state of the evidence, the counsel for the defendant
prayed the court to instruct the jury that if upon the whole
evidence given as aforesaid to the jury they should believe the
facts to be as stated as aforesaid, then the deed from the said
Wallach to the plaintiffs did not convey to the plaintiffs any
title which would enable them to sustain the action. This
instruction the court gave, and this constitutes the exception now
relied on by the plaintiff in error in his first bill of
exceptions.
Some criticism has been made upon the language in which this
instruction is couched. But in substance it raises the question
which has been so fully argued at the bar as to the validity of the
plaintiffs' title to recover if Barry was an infant at the time of
the execution of his deed to Wallach. If that deed was originally
void by reason of Barry's infancy, then the plaintiff, who must
recover upon the strength of his own title, fails in that title.
If, on the other hand, that deed was voidable only, and not void,
and yet it has been avoided by the subsequent conveyance to the
defendant by Barry, then the same conclusion follows. And these,
accordingly, are the considerations which are presented under the
present instruction.
In regard to the point whether the deed of lands by an infant is
void or voidable at the common law, no inconsiderable diversity of
opinion is to be found in the authorities. That
Page 35 U. S. 67
some deeds or instruments under seal of an infant are void, and
others voidable, and others valid and absolutely obligatory, is not
doubted. Thus, a single bill under seal given by an infant for
necessaries is absolutely binding upon him, a bond with a penalty
for necessaries is void as apparently to his prejudice, and a lease
reserving rent is voidable only. [
Footnote 1] The difficulty is in ascertaining the true
principle upon which these distinctions depend. Lord Mansfield, in
Zouch v. Parsons, 3 Burr. 1804, said that it was not
settled what is the true ground upon which an infant's deed is
voidable only -- whether the solemnity of the instrument is
sufficient or it depends upon the semblance of benefit from the
matter of the deed upon the face of it. Lord Mansfield, upon a full
examination of the authorities on this occasion, came to the
conclusion (in which the other judges of the Court of King's Bench
concurred) that it was the solemnity of the instrument and delivery
by the infant himself, and not the semblance of benefit to him,
that constituted the true line of distinction between void and
voidable deeds of the infant. But he admitted, that there were
respectable sayings the other way. The point was held by the court
not necessary to the determination of that case because in that
case the circumstances showed that there was a semblance of benefit
sufficient to make the deed voidable only upon the matter of the
conveyance. There can be little doubt that the decision in
Zouch v. Parsons was perfectly correct, for it was the
case of an infant mortgagee, releasing by a lease and release his
title to the premises upon the payment of the mortgage money by a
second mortgagee with the consent of the mortgagor. It was
precisely such an act as the infant was bound to do and would have
been compelled to do by a court of equity as a trustee of the
mortgagor. And certainly it was for his interest to do what a court
of equity would by a suit have compelled him to do. [
Footnote 2]
Upon this occasion, Lord Mansfield and the court approved of
Page 35 U. S. 68
the law as laid down by Perkins (Sec. 12) that
"All such gifts, grants, or deeds made by infants which do not
take effect by delivery of his hand are void. But all gifts,
grants, or deeds made by infants by matter of deed or in writing
which do take effect by delivery of his hand are voidable by
himself, by his heirs, and by those who have his estate."
And in Lord Mansfield's view, the words "which do take effect"
are an essential part of the definition, and exclude letters of
attorney or deeds which delegate a mere power and convey no
interest. [
Footnote 3] So that,
according to Lord Mansfield's opinion, there is no difference
between a feoffment and any deeds which convey an interest. In each
case, if the infant makes no feoffment or delivers no deed in
person, it takes effect by such delivery of his hand, and is
voidable only. But if either be done by a letter of attorney from
the infant, it is void, for it does not take effect by a delivery
of his hand.
There are other authorities, however, which are at variance with
this doctrine of Lord Mansfield and which put a different
interpretation upon the language of Perkins. According to the
latter, the semblance of benefit to the infant or not is the true
ground of holding his deed voidable or void. That it makes no
difference whether the deed be delivered by his own hand or not,
but whether it be for his benefit or not. If the former, then it is
voidable; if the latter, then it is void. And that Perkins, in the
passage above stated, in speaking of gifts and grants taking effect
by the delivery of the infant's hand, did not refer to the delivery
of the deed, but to the delivery of the thing granted -- as, for
instance, in the case of a feoffment to a delivery of seizin by the
infant personally, and in case of chattels, by a delivery of the
same by his own hand. This is the sense in which the doctrine of
Perkins is laid down in Sheppard's Touchstone 232. Of this latter
opinion also are some other highly respectable text writers,
[
Footnote 4] and perhaps the
weight of
Page 35 U. S. 69
authority, antecedent to the decision in
Zouch v.
Parsons, inclined in the same way, Lord Chief Justice Eyre, in
Keane v. Boycott, 2 H.Black. 515, alluded to this
distinction in the following terms. After having corrected the
generality of some expressions in Litt. s. 259, he added:
"We have seen that some contracts of infants, even by deed,
shall bind them; some are merely void, namely, such as the court
can pronounce to be to their prejudice; others, and the most
numerous class, of a more uncertain nature as to benefit or
prejudice, are voidable only, and it is in the election of the
infant to affirm them or not. In Roll.Abridg. title Enfants, 1
Roll.Abridg. 728, and in Com.Dig. under the same title, instances
are put of the three different kinds, of good, void, and voidable
contracts. Where the contract is by deed, and not apparently to the
prejudice of the infant, Comyns states it as a rule that the infant
cannot plead
non est factum, but must plead his infancy.
It is his deed, but this is a mode of disaffirming it. He indeed
states the rule generally, but I limit it to that case in order to
reconcile the doctrine of void and voidable contracts."
A doctrine of the same sort was held by the court in
Thompson v. Leach, 3 Mod. 310; in
Fisher v.
Mowbray, 8 East 330; and
Baylis v. Dineley, 3 M.
& Selw. 477. In the two last cases, the court held that an
infant cannot bind himself in a bond with a penalty, and especially
to pay interest. In the case of
Baylis v. Dineley, Lord
Ellenborough said:
"In the case of the infant lessor, that being a lease, rendering
rent, imported on the face of it a benefit to the infant, and his
accepting the rent at full age was conclusive that it was for his
benefit. But how do these authorities affect a case, like the
present, where it is clear upon the face of the instrument that it
is to the prejudice of the infant, for it is an obligation with a
penalty, and for the payment of interest? Is there any authority to
show that if, upon looking to the instrument, the court can clearly
pronounce that it is to the infant's prejudice, it will
nevertheless suffer it to be set up by matter
ex post
facto after full age?"
And then, after commenting on
Keane v. Baycott and
Fisher v. Mowbray, he added:
"In
Zouch v. Parsons, where this subject was much
considered, I find nothing which tends to show that an infant may
bind himself
Page 35 U. S. 70
to his prejudice. It is the privilege of the infant that he
shall not, and we should be breaking down the protection which the
law has cast around him if we were to give effect to a confirmation
by parol of a deed, like this made during his infancy."
It is apparent, then, upon the English authorities that however
true it may be that an infant may so far 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. This
distinction, if admitted, would go far to reconcile all the cases,
for it would decide that a deed, by virtue of its solemnity, should
be voidable only unless it appeared on its face to be to his
prejudice, in which case it would be void. [
Footnote 5]
The same question has undergone no inconsiderable discussion in
the American courts. In
Oliver v. Hendlet, 13 Mass. 239,
the court seemed to think the true rule to be that those acts of an
infant are void which not only apparently but necessarily operate
to his prejudice. In
Whitney v. Dutch, 14 Mass. 462, the
same court said that whenever the act done may be for the benefit
of the infant, it shall not be considered void, but that he shall
have his election, when he comes of age, to affirm or avoid it. And
they added that this was the only clear and definite proposition
which can be extracted from the authorities. [
Footnote 6] In
Conroe v. Birdsall, 1
John.Cas. 127, the court approved of the doctrine of Perkins, ยง 12,
as it was interpreted and adopted in
Zouch v. Parsons, and
in the late case of
Roof v. Stafford, 7 Cowen 180- 181,
the same doctrine was fully recognized. But in an intermediate
case,
Jackson v. Burchin, 14 John. 126, the court doubted
whether a bargain and sale of lands by an infant was a valid deed
to pass the land, as it would make him stand seized to the use of
another. And that doubt was well warranted by what is laid down in
2 Inst. 673, where it is said that if an infant bargain and sell
lands, which are in the realty, by deed indented and enrolled, he
may avoid it when he will, for the deed was of no effect to raise a
use.
Page 35 U. S. 71
The result of the American decisions has been correctly stated
by Mr. Chancellor Kent in his learned Commentaries, 2 Com.Lect. 31,
to be that they are in favor of construing the acts and contracts
of infants generally to be voidable only, and not void, and subject
to their election, when they become of age, either to affirm or
disallow them, and that the doctrine of
Zouch v. Parsons
has been recognized and adopted as law. It may be added that they
seem generally to hold that the deed of an infant conveying lands
is voidable only, and not void, unless perhaps the deed should
manifestly appear on the face of it to be to the prejudice of the
infant, and this upon the nature and solemnity as well as the
operation of the instrument.
It is not, however, necessary for us in this case to decide
whether the present deed, either from its being a deed of bargain
and sale or from its nature, as creating a trust for a sale of the
estate or from the other circumstances of the case, is to be deemed
void, or voidable only. For if it be voidable only, and has been
avoided by the infant, then the same result will follow -- that the
plaintiff's title is gone.
Let us then proceed to the consideration of the other point --
whether, supposing the deed to Wallach to be voidable only, it has
been avoided by the subsequent deed of Barry to Mrs. Moreland.
There is no doubt that an infant may avoid his act, deed, or
contract by different means according to the nature of the act and
the circumstances of the case. He may sometimes avoid it by matter
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 when he has acknowledged a recognizance or statute
staple or merchant; [
Footnote
7] sometimes, as in the case of an alienation of his estate
during his nonage by a writ of entry,
dum suit infra
aetatem, after his arrival of age. The general result seems to
be that where the act of the infant is by matter of record, he
Page 35 U. S. 72
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. [
Footnote 8] In
Co.Litt. 380b., it is said
"Herein a diversity is to be observed between matters of record
done or suffered by an infant and matters
in fait; for
matters
in fait he shall avoid either within age or at
full age, as hath been said; but matters of record, as statutes,
merchants, and of the staple, recognizances acknowledged by him, or
a fine levied by him, recovery against him, &c., must be
avoided by him,
viz., statutes, &c., by
audita
querela, and the fine and recovery by a writ of error during
his minority, and the like."
In short, the nature of the original act or conveyance generally
governs as to the nature of the act required to be done in the
disaffirmance of it. If the latter be of as high and solemn a
nature as the former, it amounts to a valid avoidance of it. We do
not mean to say that in all cases the act of disaffirmance should
be of the same or of as high and solemn a nature as the original
act, for a deed may be avoided by a plea. But we mean only to say
that if the act of disaffirmance be of as high and solemn a nature,
there is no ground to impeach its sufficiency. Lord Ellenborough,
in
Baylis v. Dineley, 3 Maule & Selw. 481, 482, held a
parol confirmation of a bond given by an infant after he came of
age to be invalid, insisting that it should be by something
amounting to an estoppel in law, of as high authority as the deed
itself, but that the same deed might be avoided by the plea of
infancy. There are cases, however, in which a confirmation may be
good without being by deed, as in case of a lease by an infant and
his receiving rent after he came of age. [
Footnote 9]
The question then is whether, in the present case, the deed to
Mrs. Moreland, being of as high and solemn a nature as the original
deed to Wallach, is not a valid disaffirmance of it. We think it
is. If it was a voidable conveyance which had passed
Page 35 U. S. 73
the seizin and possession to Wallach, and he had remained in
possession, it might, like a feoffment, have been avoided by an
entry by an infant after he came of age. [
Footnote 10] But in point of fact, Barry remained in
possession, and therefore he could not enter upon himself. And when
he conveyed to Mrs. Moreland, being in possession, he must be
deemed to assert his original interest in the land and to pass it
in the same manner as if he had entered upon the land and delivered
the deed thereon if the same had been in an adverse possession.
The cases of
Jackson v. Carpenter, 11 John. 539, and
Jackson v. Burchin, 14 John. 124, are directly in point,
and proceed upon principles which are in perfect coincidence with
the common law and are entirely satisfactory. Indeed they go
farther than the circumstances of the present case require, for
they dispense with an entry where the possession was out of the
party when he made the second deed. In
Jackson v. Burchin,
the court said that it would seem not only upon principle but
authority that the infant can manifest his dissent in the same way
and manner by which he first assented to convey. If he has given
livery of seizin, he must do an act of equal notoriety to disaffirm
the first act; he must enter on the land and make known his
dissent. If he has conveyed by bargain and sale, then a second deed
of bargain and sale will be equally solemn and notorious in
disaffirmance of the first. [
Footnote 11] We know of no authority or principle which
contradicts this doctrine. It seems founded in good sense, and
follows out the principle of notoriety of disaffirmance in the case
of a feoffment by an entry -- that is, by an act of equal notoriety
and solemnity with the original act. The case of
Frost v.
Wolverton, 1 Strange 94, seems to have proceeded on this
principle.
Upon these grounds, we are of opinion that the deed of Barry to
Mrs. Moreland was a complete disaffirmance and avoidance of his
prior deed to Wallach, and consequently the instruction given by
the circuit court was unexceptionable. To give effect to
Page 35 U. S. 74
such disaffirmance, it was not necessary that the infant should
first place the other party
in statu quo.
The second bill of exceptions, taken by the plaintiff, turns
upon the instructions asked upon the evidence stated therein, and
scarcely admits of abbreviation. It is as follows:
"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 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 birth, and thereupon the counsel for the
plaintiff requested the court to instruct the jury:"
"1. That, if the said 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
right, or during a period of several months acquiesce in the same
without objection, that then the 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.
Page 35 U. S. 75
That, from the relative position 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 said defendant to give a full consideration for
said deed to Wallach and to accept said 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 counsel for the plaintiff excepted."
The first instruction, being given by the court, is of course
excluded from our consideration on the present writ of error. The
second instruction is objectionable on several accounts. In the
first place, it assumes as 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. In the next place, that a mere
acquiescence in the same conveyance without objection for several
months after his arrival at age is also a confirmation of it. In
our judgment, neither proposition is maintainable. The mere
recognition of the fact that a conveyance has been made is not
per se proof of a confirmation of it. Lord Ellenborough,
in
Baylis v. Dineley, 3 M. & Selw. 482, was of opinion
that an act of as high a solemnity as the original act was
necessary to a confirmation.
"We cannot [said he] surrender the interests of the infant into
such hands as he may chance to get. It appears to me that we should
be doing so in this case [that of a deed] unless we required the
act after full age to be of as great a solemnity as the original
instrument."
Without undertaking to apply this doctrine to its full extent,
and admitting that acts
Page 35 U. S. 76
in pais may amount to a confirmation of a deed, still
we are of opinion that these acts should be of such a solemn and
unequivocal nature as to establish a clear intention to confirm the
deed after a full knowledge that it was voidable. [
Footnote 12]
A fortiori, mere
acquiescence, uncoupled with any acts demonstrative of an intent to
confirm it, would be insufficient for the purpose. In
Jackson
v. Carpenter, 11 Johns. 542, 543, the court held that an
acquiescence by the grantor in a conveyance made during his
infancy, for eleven years after he came of age, did not amount to a
confirmation of that conveyance; that some positive act was
necessary evincing his assent to the conveyance. In
Austin v.
Patton, 11 Serg. & R. 311, the court held that to
constitute a confirmation of a conveyance or contract by an infant
after he arrives of age, there must be some distinct act by which
he either receives a benefit from the contract after he arrives at
age or does some act of express ratification. There is much good
sense in these decisions, and they are indispensable to a just
support of the rights of infants according to the common law.
Besides, in the present case, as Barry was in possession of the
premises during the whole period until the execution of his deed to
Mrs. Moreland, there was no evidence to justify the jury in drawing
any inference of any intentional acquiescence in the validity of
the deed to Wallach.
The third instruction is, for the reasons already stated,
unmaintainable. The deed to Mrs. Moreland contains a conveyance of
the very land in controversy, with a warranty of the title against
all persons claiming under him (Barry) and a covenant that he had
good right and title to convey the same and therefore is a positive
disaffirmance of the former deed.
The fourth instruction proceeds upon the supposition that if the
deed to Mrs. Moreland was fraudulent between the parties to it, it
was utterly void, and not merely voidable. But it is clear that
between the parties it would be binding and available; however, as
to the persons whom it was intended to defraud, it might be
voidable. Even if it was made for the very purpose of defeating the
conveyance to Wallach, and was a mere
Page 35 U. S. 77
contrivance for this purpose, it was still an act competent to
be done by Barry, and amounted to a disaffirmance of the conveyance
to Wallach. In many cases, the disaffirmance of a deed made during
infancy is a fraud upon the other party. But this has never been
held sufficient to avoid the disaffirmance, for it would otherwise
take away the very protection, which the law intends to throw round
him to guard him from the effects of his folly, rashness, and
misconduct. In
Saunderson v. Marr, 1 H.Bl. 75, it was held
that a warrant of attorney given by an infant, although there
appeared circumstances of fraud on his part, was utterly void, even
though the application was made to the equity side of the court to
set aside a judgment founded on it. So in
Conroe v.
Birdsall, 1 John.Cas. 127, a bond made by an infant who
declared at the time, that he was of age was held void
notwithstanding his fraudulent declaration, for the court said that
a different decision would endanger all the rights of infants. A
similar doctrine was held by the court in
Austin v.
Patton, 11 Serg. & R.. 309-310. Indeed, the same doctrine
is to be found affirmed more than a century and a half ago in
Johnson v. Pie, 1 Lev. 169;
S.C., 1 Sid. 258; 1
Kebb. 995, 913. [
Footnote
13]
But what are the facts on which the instruction relies as proof
of the deed to Mrs. Moreland being fraudulent and void? They are
"the relative positions of the parties to said deed at and previous
to its execution" -- that is to say the relation of mother and son
and the fact that she had then instituted a suit against him, and
arrested him, and held him to bail, as stated in the evidence, and
"from the circumstances attending the execution of it" -- that is
to say that Mrs. Moreland was informed by Barry, before his deed to
her, that he had so conveyed the said property to Wallach and that
subsequently, and with such knowledge, she prevailed on Barry to
execute to her the same conveyance. Now certainly these facts alone
could not justly authorize a conclusion that the conveyance to Mrs.
Moreland was fraudulent and void, for she might be a
bona
fide creditor of her son. And the consideration averred in
that conveyance showed her to be a creditor, if it was truly stated
(and there
Page 35 U. S. 78
was no evidence to contradict it), and if she was a creditor,
then she had a legal right to sue her son, and there was no fraud
in prevailing on him to give a deed to satisfy that debt.
It is probable that the instruction was designed to cover all
the other facts stated in the bill of exceptions, though in its
actual terms it does not seem to comprehend them. But if it did, we
are of opinion that the jury would not have been justified in
inferring that the deed was fraudulent and void. In the first
place, the proceedings in the orphans' court may, for aught that
appears, have been in good faith and under an innocent mistake of a
year of the actual age of Barry. In the next place, if not so,
still the mother and the son were not estopped in any other
proceeding to set up the nonage of Barry, whatever might have been
the case as to the parties and property involved in that
proceeding. In the next place, there is not the slightest proof
that these proceedings had at the time any reference to or intended
operation upon the subsequent deed made to Wallach, or that Mrs.
Moreland was party to or assisted in the negotiations or
declarations on which the deed to Wallach was founded. Certainly,
without some proofs of this sort, it would be going too far to
assert that the jury might infer that the deed to Mrs. Moreland was
fraudulent. Fraud is not presumed either as a matter of law or fact
unless under circumstances not fairly susceptible of any other
interpretation.
The fifth instruction was properly refused by the court for the
plain reason that there was no evidence in the case of any acts or
declarations by Mrs. Moreland to the effect therein stated. It was
therefore the common case of an instruction asked upon a mere
hypothetical statement,
ultra the evidence.
The third bill of exceptions is as follows:
"The court having refused the 2d, 3d, 4th, and 5th instructions
prayed by the plaintiffs, 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 in the prayers for the said instructions, they
should be of opinion that the said Richard was under
Page 35 U. S. 79
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 deed was a disaffirmance of his
preceding deed to him the said Richard Wallach, and that in that
case the jury ought to find their 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 plaintiff excepted thereto."
It is unnecessary to do more than to state that the bill of
exceptions is completely disposed of by the considerations already
mentioned. It contains no more than the converse of the
propositions stated in the second bill of exceptions and the
reassertion of the instruction given by the court in the first bill
of exceptions.
Upon the whole it is the opinion of the Court that the judgment
of the circuit court ought to be
Affirmed with costs.
[
Footnote 1]
See Russell v. Lee, 1 Lev. 86;
Fisher v.
Mowbray, 8 East. 330;
Baylis v. Dineley, 3 M. &
Selw. 470, Co.Litt. 172a.
[
Footnote 2]
See _____ v. Handcock, 17 Ves. 383. 1 Fonbl.Eq. B. 1.
ch. 2. S. 5. and Notes. Co.Litt. 172(a) Com.Dig. Infant, B. 5.
[
Footnote 3]
See Saunders v. Mann, 1 H.Black 75.
[
Footnote 4]
See Preston on Conveyancing 248-250; Com.Dig. Enfant.
c. 2; Shep.Touch. 232, and Acherly's note; Bac.Abridg. Infancy. I.
3; English Law Journal for 1804, 145; 8 Amer.Jurist 327.
But
see 1 Powell on Mortg. by Coventry, note to 208;
Zouch v.
Parsons, 1 W.Black. 575; Ellsley's notes, (h) and (v);
Co.Litt. 51. 6, Harg. note, 331;
Holmes v. Blogg, 8 Taunt.
508; 1 Fonbl.Eq. b. 1. ch. 11. s. 3, and notes (y)(z)(a)(b).
[
Footnote 5]
See Bac.Abridg. Infancy and Age, I. 3., I. 7.
[
Footnote 6]
See Boston Bank v. Chamberlain, 15 Mass. 220.
[
Footnote 7]
See Com.Dig. Enfant, B. 1, 2, C. 2, 3, 4, 5, 8, 9, 11;
2 Inst. 673; 2 Kent Comm. sec. 31; Bac.Abridg. Infancy and Age, I.
5, I. 7.
[
Footnote 8]
See Bac.Abridg. Infancy and Age, I. 3, I. 5, I. 7;
Zouch v. Parsons, 3 Burr. 1794;
Roof v. Stafford,
7 Cowen 179, 183; Com.Dig. Enfant, C. 9, C. 4, C. 11.
[
Footnote 9]
See Bac.Abridg. Infancy and Age, I. 8.
[
Footnote 10]
See Inhabitants of Worcester v. Eaton, 13 Mass. 375;
Whitney v. Dutch, 14 Mass. 462.
[
Footnote 11]
See the same point, 2 Kent.Comm. sec. 31.
[
Footnote 12]
See Boston Bank v. Chamberlin, 15 Mass. 220.
[
Footnote 13]
See Bac.Abridg. Infancy and Age H. 2; Kent.Comm. Lect.
31.
