Bull v. Sevier

• Decision Date: 04 May 1889
• Citation: 11 S.W. 506,88 Ky. 515
• Parties: BULL v. SEVIER et al.
• Court: Kentucky Court of Appeals

11 S.W. 506

88 Ky. 515

BULL v. SEVIER et al.

Court of Appeals of Kentucky.

May 4, 1889

Appeal from Louisville law and equity court; STERLING B. TOHEY Judge.

"Not to be officially reported."

Suit by Mary A. Bull against John Sevier and wife, and others. Plaintiff appeals.

Hargis & Eastin and John C. Russell, for appellant.

Barnett Miller & Barnett and W. K. Carlisle, for appellees.

HOLT J.

This is an unhappy family contest, between the mother upon the one side and the daughter and her husband upon the other. In 1870 a valuable house and lot in the city of Louisville were conveyed to the appellant, Mary Bull, then the wife of John Bull. The habendum clause of the deed reads thus "To have and to hold said property unto the said Mary Ann Bull, with full and complete power in her to dispose of the same, with the consent of her husband, John Bull, either by deed or last will and testament, but in the event said property is not thus disposed of by said Mary Ann, it shall pass and descend to her children by said John Bull, share and share alike." The husband died in 1875, leaving four children by the wife, to-wit, Edward, Robert, Mary, who thereafter married one Snively, and the appellee Ella, who married John Sevier, on June 11, 1877. When the father died only Edward was of age. February 13, 1885, the appellant brought this action, in form quid timet, against all of her children, they being then all of age, claiming the absolute fee in the property, and asserting that they, and especially Sevier and wife, were claiming some interest in it. Relief was asked against all of them, but all, by answer disclaimed, and consented to the relief sought, save Sevier and wife. They, by answer, denied that the appellant had any interest in the property, save a life-estate, and claimed a one-fourth remainder interest for the appellee Ella Sevier. Their answer also set forth the date of their marriage, and that on that day they had executed to the appellant a deed of release of all interest in the property, but that it had been procured by fraud and misrepresentation, was without consideration, and that the wife was then an infant. Its cancellation was asked, and their answer therefore made a counter-claim against the appellant. Thus this deed was first introduced into the record, and the appellees asked affirmative relief as to it. Thereafter the appellant relied upon it by an amended petition, and by reply set up that the appellees had ratified it by various acts, and in various ways, (enumerating them,) after Mrs. Sevier became of age. The issues were fully made up by extended pleading, and upon final hearing the lower court dismissed the petition in toto, not even giving relief as against those who had confessed the appellant's right to it. It held that the deed of release by Sevier and wife, of June 11, 1877, was absolutely void, and therefore incapable of ratification.

It is clear Mrs. Sevier was not only then a married woman, but an infant. The contracts of a feme covert are in general void. As, however, she may bind herself by an executed deed, so she may in like manner ratify one made by her when an infant. The infirmity in this conveyance arose from the fact that the grantor was an infant when it was executed, and not because she was then a married woman. The deed of an infant is not void, but voidable. This is equitable to him, and has been generally regarded as the settled rule ever since it was declared, after much consideration, in Zouch v. Parsons, 3 Burrows, 1794, now over a century ago, and in which Lord MANSFIELD, speaking with judicial eloquence, said it was a rule that the privilege of infancy, "which is given as a shield, and not as a sword, never shall be turned into an offensive weapon of fraud or injustice." Kent says: "The doctrine of the case of Zouch v. Parsons has been recognized as law in this country, and it is not now to be shaken." 2 Kent, Comm. 236,

Waiving the question whether the appellant was originally vested with an absolute fee, or whether, after the death of her husband she had but a life-estate in the property, we will proceed to consider the question whether the appellee Ella Sevier has since her arrival at majority ratified the deed of release made by her when an infant, or whether, more properly speaking, she is now equitably estopped from relying upon her infancy at the time of its execution, and from setting up a claim to an interest in the property. It appears that the appellant shortly after the death of her husband learned that there was at least a cloud upon her claim to the absolute title to the property. She then owned some land upon Fourth street, in Louisville; and it is claimed by her that thereupon an understanding was had between her and her four children that she would give to each of them 100 feet front of the last-named property, and they were to release to her whatever interest they had, if any, in the house and lot, the children under age doing so as they became of age, or the daughters upon marriage, if it should occur before their majority, it...