Breckenridge's H'Rs v. Ormsby
| Decision Date | 17 April 1829 |
| Citation | 24 Ky. 236 |
| Court | Kentucky Court of Appeals |
| Parties | <I>Breckenridge's heirs</I> <I>vs.</I> <I>Ormsby.</I> |
Appeal from the Jefferson Circuit; HENRY PIRTLE, Judge.
IN 1800, Walter Beall mortgaged to Robert Andrews and John Pierce, in trust for Samuel Beall, various tracts of land, town lots, &c. In April, 1801, he mortgaged the same property to John Breckenridge, to secure the payment of £1000. In 1802, he mortgaged it again to John Breckenridge, as security for another liability, and recognized and referred to the mortgage of 1801. In 1304, he sold one of the mortgaged lots to Peter B. Ormsby, and made him a deed for it. John Breckenridge and Walter Beall, both having previously died, in October, 1811, the representatives of Breckenridge brought a suit in chancery in the Fayette circuit court against N. B. Beall, the administrator, and Samuel Beall the devisee of the decedent, W. Beall, and against the trustees, Andrews and Pierce, praying a foreclosure of the mortgage of 1801. In the progress of the suit, the heirs of the decedant, Beall, were made defendants. The administrator acknowledged service of the subpœna, and it was executed on S. Beall in Fayette. The heirs answered, and there was a publication for eight weeks against the trustees.
A foreclosure of the equity of redemption and sale of as much of the mortgaged property as might be necessary, were decreed by the court; and among other things, the lot in Bardstown, in the possession of P. B. Ormsby, was sold by the commissioner appointed by the decree, and purchased by P. B. Ormsby himself, for $4030, for which he executed bond, with the said N. B. Beall his security. Having failed to pay the amount of the bond, when due, suit was brought on it, and judgment obtained against him and N. B. Beall, in the Jefferson circuit court. The property of P. B. Ormsby was sold by execution, to satisfy this judgment, and was purchased by his brother, Stephen Ormsby, on a credit, and who executed his bond therefor. N. B. Beall had filed a bill of review, to correct the decree, and failed; and he and P. B. Ormsby had made a motion, in the same court, to set aside the sale and quash their bond, which also failed.
This suit was instituted in the Jefferson circuit court, by P. B. Ormsby, for the purpose of enjoining the payment of his bond, by Stephen Ormsby; and the bill relies principally on these grounds. First. That Walter Beall was in a state of lunacy in 1801, when he executed the deed of mortgage to Breckenridge. Second. That the decree is inoperative and void, for want of jurisdiction in the Fayette court, the defendants and all the mortgaged property, (as alleged) being in other counties, and for want of proper parties. Third. That P. B. Ormsby did not know when he made the purchase of the lot; that he could prevent the sale, or avoid the decree.
The circuit court of Jefferson granted the injunction, and by its final decree, made it perpetual. And this appeal is prosecuted to reverse this decree.
The main questions which the assignment of errors presents for consideration, are: First. Whether (admitting the alleged lunacy) the deed of 1801, was void or voidable? Second. If only void, whether it was confirmed by that of 1802, when, it is admitted, that Walter Beall was compos mentis? Third. If not confirmed, whether Ormsby, as a subsequent purchaser, can avoid it? And, Fourth. Whether the Fayette decree can be questioned, in this suit?
A parallel is supposed to exist between the civil acts of lunatics and infants. This is the well established doctrine of the law, as evinced by a series of decisions, in England and the American states. It is not necessary to inquire into the reason or fitness of this analogy. Its judicial sanctions give it the irresistable force of unquestionable authority. But if there had been no decision upon it, we should be inclined to the opinion that the contracts of lunatics and infants, should be identical in their legal effects; and that such acts of an infant as are void, should be void if done by a lunatic; and such as are only voidable by plea of infancy, should be but voidable by reason of lunacy. The only exception to this parallelism is, that (according to a preponderance of authority,) the lunatic cannot, himself, like the infant, plead his disability. We know of no other. The authorities conclusively show that the contracts of infants and lunatics, are alike void or voidable. 3 Bac. Abr. 301; 1 L. Ray, 313; Highmore, 113; 3 Mod. 308.
Infants and lunatics were placed on the same footing of entire exemption from liability for any contract, by the Roman law; Institutes Lib. 3 tit. 20. And it is admitted by all the counsel in the argument of this case, that when contracts of the one are only voidable, those of the other class are not void.
If there be any difference between the effects of a contract by an infant and that of a lunatic, it must be to the disadvantage of the latter; for as it seems to be generally admitted that a lunatic cannot avoid his acts, by plea of stultification, there might be some difficulty (if such be the law) in determining that any of them could be absolutely void.
However this may be, it will be sufficient for the decision of the first point in this case, to consider the deed of a lunatic, as a deed by an infant; and this we shall do, because the authorities are more abundant and more satisfactory on the voidness or voidability of deeds by infants, than of those by lunatics.
It will be fair then, to consider the deed of 1801, in this case, as one executed by an infant, and if in so considering it, the result shall be, that it is only voidable, the appellee will certainly have no right to complain; because it could not, in that event, be more than voidable by W. Beall, even if his lunacy had been indubitably established.
It is somewhat doubtful, whether Walter Beall was, in the proper sense of the term, a lunatic in 1801.
The evidence is contradictory and unsatisfactory. It is numerically on the side of incapacity. But when carefully scrutinized, leaves the mind in serious doubt and perplexity. If this were, therefore, the only point in the case, we should scarcely be willing to decide against the conclusive validity of the deed. But waving a decision of this fact, and admitting the lunacy, as if well established, is the deed void or is it only voidable? The answer must be, that it cannot be more than voidable. There is not a perfect coincidence in all the decisions and dicta on this subject. But the force of the argument and the weight of the authorities decisively preponderate against the assumption that the deed is void.
The common law, in this respect more liberal and more advantageous to the interests of infants, than the civil code, enables them to make some contracts which they cannot avoid, and others which they may avoid or not, as they deem most expedient. Very few of the contracts of infants are void. And it is well for them that such is the law. For deplorable indeed, would be their condition, if, during the period of their minority, which is fixed by arbitrary law, they could make no contracts for their own benefit. Their legal disability would then be the opposite of what it was intended to be. It would be a handcuff instead of a shield. And the law would be their worst enemy, instead of being, as it professes to be, their guardian and best friend. For if all the contracts of infants be void, they are not only not binding on them, but create no obligation on those with whom they may be made; and infants would be thus doomed to vassalage, and frequently to destitution and oppression.
The enlightened benevolence of the common law, therefore, enables infants to make valid contracts with adults; and to secure their inexperience and imbecility from imposition, allows the infants, but not the other parties, the personal privilege of avoiding them, if they shall consider them disadvantageous. This is exactly as it should be. There are very few contracts from which the adult party can escape under cover of the disability of the minor party. And it is questionable whether it is consistent with sound policy and the reason of the privilege of infancy, that there should be any. But those whose light we are bound to follow, have, for ages, admitted that there may be a class of contracts with infants, which are entirely void, and which, therefore, either party may disregard. And although we may be unable to perceive the wisdom or justice of the distinction, it has become the law.
A contract is void when it is a nullity, obligatory on neither party, and insusceptible of ratification; when either party is bound, or it may be confirmed, it is only voidable. What this class of void contracts is, has not been yet ascertained with satisfactory precision. There are some dicta which countenance the inference that all contracts are void, unless the thing contracted about pass by a delivery of it. This doctrine is relied on by the appellee. Other authorities insist that all parol contracts which are, on their face, prejudicial to the infant, and such by deed as do not take effect by delivery of the deed, are void; and that all others are merely voidable, excepting those for necessaries, which, generally, are binding. Of the two, the latter, we consider the better doctrine of the law; and one more accordant with reason than the former. The only objection to it, is that it may be too comprehensive. We doubt whether the same test should not be applied to contracts by infants for personal and for real estate, to those which are parol, and those which are by deed. And we doubt too, whether the fact that a deed does or does not take effect, to pass title by a delivery of the deed, should have a decisive influence on the question, whether it be void or voidable.
The distinction between the delivery of the deed and that of the land, seems to be arbitrary, and to...
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