51 S.W. 1040 (Mo. 1899), Ridgeway v. Herbert

Citation:51 S.W. 1040, 150 Mo. 606
Opinion Judge:VALLIANT, J.
Party Name:Ridgeway, Appellant, v. Herbert et al
Attorney:S. C. Price for appellant. Hall & Hall for respondents.
Judge Panel:VALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., concurs
Case Date:June 14, 1899
Court:Supreme Court of Missouri
 
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Page 1040

51 S.W. 1040 (Mo. 1899)

150 Mo. 606

Ridgeway, Appellant,

v.

Herbert et al

Supreme Court of Missouri, First Division

June 14, 1899

Appeal from Grundy Circuit Court. -- Hon. Paris C. Stepp, Judge.

Reversed and remanded (with directions).

S. C. Price for appellant.

(1) Plaintiff's objection to evidence tending to prove the drunkenness of George W. Moberly at the time of making the various contracts with plaintiff should have been sustained. If Moberly was drunk, it did not make those contracts void, but only voidable, and he only could object to them on that ground. These defendants can not avoid said contracts on that ground, even if they are shown to be in privity in estate with said Moberly. Eaton's Admr. v. Perry, 29 Mo. 96. (2) Upon the pleadings and undisputed evidence in this case, the doctrine of equitable estoppel applies. Justice v. Town of Lancaster, 20 Mo.App. 559; Union Savings Ass'n v. Kehlor, 7 Mo.App. 158; Guffey v. O'Reiley, 88 Mo. 429; Kennedy v. Bambrick, 20 Mo.App. 630; Craig v. Van Bebber, 100 Mo. 584. (3) In order that a subsequent conveyance may operate in law as a disaffirmance of contract of infancy, the subsequent conveyance must be so inconsistent with such contract of infancy that both can not stand. Craig v. Van Bebber, 100 Mo. 584. (4) An affirmance of a contract of an infant may be made after coming of age, by expressing satisfaction with the bargain. Craig v. Van Bebber, 100 Mo. 584. (5) Appellant's motion to strike out parts of defendants' answer should have been sustained. A judgment in ejectment is not a bar to another action, even between the same parties, and that whether the title and defense be the same or not. Hogan v. Smith, 11 Mo.App. 314; Dunn v. Miller, 8 Mo.App. 467; s. c., 75 Mo. 260; Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493. (6) Even if Moberly was a minor when the assignment of the Martin lease and the lease and deed to Ridgeway were made, yet, in the subsequent suit of Moberly v. Ridgeway, he pleaded his majority when those transactions were had, and the rule of estoppel by pleading should apply to him and those claiming under him against the above conveyances. Kennedy v. Bambrick, 20 Mo.App. 630; Bigelow v. Estop, 603 and 604; Ferguson v. Landvain, 1 Busch. 548; Railroad v. Chicago, 87 Ill. 317; Hines v. Ament, 43 Mo. 298; Hensler v. Cannefax, 49 Mo. 295; Slagel v. Murdock, 65 Mo. 522. (7) That part of the judgment in this case which enjoins appellant from bringing another suit for these lands on the present title, is clearly erroneous.

Hall & Hall for respondents.

(1) The deed from Moberly, after becoming of age, to Williams and Linney, was a disaffirmance of the deeds and leases previously made while a minor, and he was not required to refund or offer to refund the purchase price. Peterson v. Laik, 24 Mo. 544; Harris v. Ross, 86 Mo. 89; Craig v. Van Bebber, 100 Mo. 584. (2) In order to constitute a ratification of the deed and leases made by Moberly to plaintiff, and those assigned to plaintiff, after he became of age, there must have been a direct and express confirmation of the same of a clear and unequivocal character and a substantial promise to abide by and keep and fulfill the obligation of said leases and deed, showing an intention to affirm the same after he came of age. Craig v. Van Bebber, 100 Mo. 590; Baker v. Kennett, 54 Mo. 89; Highley v. Barron, 49 Mo. 107; Clamorgan v. Lane, 9 Mo. 472; Ferguson v. Bell's Admr., 17 Mo. 347. (3) The transaction between plaintiff and young Moberly was clearly fraudulent. 8 Am. and Eng. Ency. of Law (1 Ed.), 644; Dickson v. Kempinsky, 96 Mo. 258; Hopkins v. Sievert, 58 Mo. 201. (a) The unusual procedure of plaintiff in procuring the assignment is evidence of fraud. Baldwin v. Whitcomb, 71 Mo. 659; Snell v. Harrison, 104 Mo. 188; Houts v. Shepherd, 79 Mo. 147; Hoge v. Hubb, 94 Mo. 503. (b) Inadequacy of price is evidence of fraud. Curd v. Lackland, 49 Mo. 454; Briant v. Jackson, 99 Mo. 598; Routt v. Milner, 57 Mo.App. 53; Robinson, Exr., v. Robards, 15 Mo. 467. (c) Intoxication is evidence of fraud. Longhead v. Commission Co., 64 Mo.App. 564; Haneklau v. Felchlin, 57 Mo.App. 603.

VALLIANT, J. Brace, P. J., and Robinson, J., concur; Marshall, J., concurs in result but dissents from the doctrine quoted from Craig v. Van Bebber, 100 Mo. 584.

OPINION

[150 Mo. 609] VALLIANT, J.

This is an action of ejectment to recover 60 acres of land in Grundy county. The petition is in the usual form. The answer admits that defendants are in possession and sets up a state of facts showing that plaintiff is entitled to recover unless

Page 1041

the leases and deed under which he claims are rendered invalid by reason of the further facts pleaded in the answer, which are substantially, that on December 2, 1891, George W. Moberly, who is the common source of title, was the owner and in possession of the land, and on that day he executed a lease for a term of five years from March 1, 1892, to one Martin, at the yearly rental of [150 Mo. 610] $ 100, and on December 31, 1891, Moberly, for the consideration of $ 55 assigned his interest as landlord in the lease to the plaintiff and J. D. Ridgeway, the latter afterwards assigning his interest to the plaintiff; that afterwards on February 1, 1892, Moberly executed a lease to plaintiff for five years from March 1, 1897, for a total rental of $ 50, and three days later executed a deed to the plaintiff for the land for $ 50; that at the time he made those leases and the deed, Moberly was under twenty-one years of age; that after he came of age he disaffirmed those transactions and made a deed conveying the land to Williams and Linney under whom by mesne...

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