Bigelow v. Kinney

• Decision Date: 01 February 1830
• Parties: JOSEPH BIGELOW v. SEWALL KINNEY
• Court: Vermont Supreme Court

3 Vt. 353

JOSEPH BIGELOW v. SEWALL KINNEY

Supreme Court of Vermont, Windsor

February, 1830

[Syllabus Material] [Syllabus Material] [Syllabus Material]

This was an action of ejectment for land in Weathersfield, being part of lot no. 22. On the trial of the general issue, the plaintiff claimed title to the land under, and gave in evidence, a deed from Joseph R. Williams to him, dated Nov 12th, 1818. The defendant gave in evidence a mortgage deed from the plaintiff to Joseph R. Williams, dated Nov. 12th 1818, and executed at the same time of the first mentioned deed, to secure the payment of several notes given by the plaintiff to Williams for the purchase of the land; and also a quit-claim deed from the plaintiff to Williams, dated Nov. 14th, 1818, which was executed in consideration of the giving up by Williams to the plaintiff the notes described in and secured by the mortgage. The defendant also gave in evidence a deed from Joseph R. Williams to John P. Williams, dated April 6th, 1820; a deed from John P. Williams to Perkins in 1828, and a deed from Perkins to the defendant; and proved that Joseph R. Williams took possession of the land immediately after the plaintiff executed to him the quit-claim deed, and continued in possession until he conveyed to John P. Williams, who entered into possession of the land in January, 1821, and continued in possession until he conveyed to Perkins in 1828. The plaintiff proved, that at the time he executed the mortgage deed, and the quit-claim deed, to Joseph R. Williams, he was a minor under the age of twenty-one years; that he arrived at full age in May, 1819; that when he executed the quit-claim deed Joseph R. Williams promised to pay him the sum of $ 100, being the amount of what the plaintiff had advanced on the purchase, whenever he should sell the land; and that after Joseph R. Williams conveyed to John P. Williams, the plaintiff demanded of Joseph R. Williams the $ 100 promised him, which Williams refused to pay. The defendant proved that in 1821, after the conveyance to John P. Williams, the plaintiff applied to John P. Williams, to buy the land, and afterwards applied to him to hire it, or take a lease of it; but no bargain was concluded. The county court directed the jury, that if they found that the plaintiff, at the time he executed the mortgage deed and the quit-claim deed to Joseph R. Williams, was under the age of twenty one years, he was entitled to recover; that the evidence given in the case did not amount to a ratification of the contract; but if it did, that it was sufficiently explained if they believed that the plaintiff acted under the influence of the promise made to him by Williams. A verdict being returned for the plaintiff, and judgement rendered thereon in the county court, the cause was removed to this Court, on exceptions filed by the defendant to the directions given to the jury.

Mr Collamer, for the defendant. -- 1. The deed of an infant is voidable only, and not void, if, as in this case, it might be beneficial. This is most advantageous to him; yet this, like all other privileges of infants, is only to be so far extended as is necessary to his protection. As the deed is binding on the adult, the privilege to disaffirm should be exercised immediately on arriving at full age, or in a reasonable time after, or never. This is all his protection requires, and the safety of others is consistent with no other principle. Hence, mere silence, or permitting affairs to remain as before, is an affirmation. This the plaintiff did for nine years after he became of age. --1 Swift's Dig. 58; 1 Kent's Com. 195; Kline v. Beebe, 6 Conn. 502-7; Holmes v. Blogg, 4 Com. L. Rep. 28, (8 Taun. 35.)

2. Any act done, after full age, inconsistent with disaffirmance, is, in itself, an affirmance. Such were the acts of the plaintiff, consisting in offers by himself and through others, both to purchase and to hire the premises, keeping his notes, & c.

3. This silence, and these overt acts, amounting to an affirmance of the quit-claim deed, are in no way explained by the plaintiff. The pretended promise of J. R. Williams does not explain them. 1. Because the very terms of that promise, if relied on by the plaintiff, after age, were consistent only with affirmance; and the refusal of Williams afterwards to pay, or the neglect of the plaintiff to enforce it, furnish no excuse or foundation for the present suit. 2. It could not furnish an excuse after 1821, as J. R. Williams then refused payment, and, therefore, eight years remain unaffected by it. 3. The not recording the deed to J. P. Williams could furnish no excuse, as the same was well known to the plaintiff, as appears by his own testimony of his applications to both J. R. Williams and J. P. Williams; and the court should so have charged the jury. 4. The disaffirmance of a deed must be by some overt act or notice by an adult, and this must be previous to suit, or the title is not in him. The only reason why this may be dispensed with for an infant is, that the avoidance of a deed requires the same discretion as to make one. 5. By and upon disaffirmance the parties should be restored to their respective rights unless impossible. It should be " status ante bellum," not " uti possidetis." Bigelow should not be permitted to disaffirm his quit claim deed, unless on replacing the notes, which were its consideration. Nor indeed can the delivery of the notes for a deed, now to be considered void or inoperative, be considered payment of those notes. The parties are then to be left on the first deed and mortgage, which are to be taken together, and constitute in law a mere conditional sale to the plaintiff, with which condition he has never complied, and has, therefore, no right to recover.

If the plaintiff, who, on arrival of age, is to be viewed like all other men, competent to understand and assert his right, had wished to avoid his quit-claim deed, he should have done so immediately, by replacing the mortgage notes. If he had then wished to avoid the contract, it should have been done by notice and demand of the notes and pay he had made. By this he would have entitled himself to recover whatever pay he had made, but not, as now claimed, the whole land. His neglect to enforce the promise of J. R. Williams for the hundred dollars may have barred him. This neglect to make those disaffirmances and demands in season may now have barred him of recovering what he paid: but it cannot be true that his own neglect has now given him farther and much greater rights. It will hardly be contended an infant on taking a deed of land, and at the same time mortgaging back for the purchase money, may immediately avoid his part of the contract, and hold the land absolutely. This would, indeed, make his privilege a sword and not a shield. If the plaintiff could not have done this at the time, when and by what professional finesse or legal legerdemain has he since acquired this right?

Cushman, for the plaintiff.--If an action was sustainable at all for the $ 100 when the sale was effected, upon the promise of Joseph R. Williams to plaintiff, yet for eight years it could not have been sustained, because, in the eye of the law, the premises were not yet sold--the deed not being on record, nor any body in visible possession. The question, then, of the acquiescence of the infant is at rest here, because, the fraud and collusion of the Williams--1. in Joseph R. Williams in circumventing the boy, and 2. in their covinous management in the sale and legal transfer of the premises afterwards, till the statute of limitations had run upon the promise--rebut all idea of acquiescence in the infant, as creating a bar to his right; and if conscience had taken any part in the transaction, the $ 100 would have been paid, and this action prevented.

But again, there is no pretence of acquiescence after this covinous sale in 1820, because, he then told Joseph R Williams, " you will hear from this again." Here is to be seen the reason why this deed was not recorded--under a combined determination to cheat this boy; and here then was notice that he should not ratify the contract, and this immediately too after he became of age; for he became of age, May 6, 1819; and about eleven months after he was of age,...