Clark v. Another

• Decision Date: 29 July 1887
• Citation: 7 Mont. 171
• Parties: CLARK v. TATE and another.
• Court: Montana Supreme Court

7 Mont. 171

CLARK

v.TATE and another.

Supreme Court of the Territory of Montana.

July 29, 1887.

Appeal from Third district, Gallatin county.

R. P. Vivion and Geo. F. Shelton, for appellants.

Luce & Armstrong, for respondent.

McCONNELL, C. J.

This is an action of ejectment. There was judgment upon the pleadings for the plaintiff, and the case is brought here for alleged errors of law apparent upon the judgment roll. The appellants disclose in their amended answer the fact that they purchased the land in controversy of the plaintiff when he was a minor, and they allege that they paid him the price agreed upon, took a written obligation from him, in which he pledges his honor that he will make them a deed when he becomes of age; and also took a written obligation from C. L. Clark, the father of respondent, binding him to have the deed made by his son, when he becomes of age.

1. The first error assigned is that the plaintiff, having received the consideration of $150, must restore it before he can sue, or, if he spent the money, and cannot restore it, he must aver in his complaint this fact. While the authorities do not agree on this subject, we think that the sound rule is, as laid down by Chancellor Kent, as follows: “If an infant pay money on his contract, and enjoys the benefit of it, and then avoids it when he comes of age, he cannot recover back the consideration paid. On the other hand, if he avoids an executed contract when he comes of age, on the ground of infancy, he must restore the consideration which he had received. The privilege of infancy is to be used as a shield, and not as a sword.” 2 Kent, Comm. 240. In this case the contract was executed, so far as the appellants are concerned, but executory on the part of the respondent. He was to make a conveyance when he became of age, and this he has never done. He now, after attaining his majority, disaffirms his contract, by suing for the possession of the land sold, and does not pay the consideration back, nor give any reason why he does not. Mr. Tyler, in his work on Infancy and Coverture, page 80, section 37, says: “If the contract has been executed by the adult, and the infant has the property or the consideration received, if, at the time he attains full age, he then repudiates the transaction, he must return such property or consideration, or its equivalent, to the adult party.” Bailey v. Barnberger, 11 B. Mon. 113;Womack v. Womack, 8 Tex. 397;Grace v. Hale, 2 Humph. 27;Smith v. Evans, 5 Humph. 70.

But the facts set out in this case, in appellant's answer, are peculiar. In the original answer they allege that the consideration was paid to plaintiff, or his father. In their amended answer they allege it was paid to the father; and in their last amended answer,—which amendment was made after judgment,—they aver it was paid to plaintiff. But we can only look to the last amended answer in reviewing this case, and the exhibits thereto. But what ground is there for requiring return of the $150? C. L. Clark, the father of the respondent, entered into the obligation aforesaid, ‘ in consideration of said $100 so paid as aforesaid.’ Now, if this money was paid to the infant, as recited in the contract, and averred in the last answer, how was it a consideration inuring to the benefit of C. L. Clark? Or how was it for the benefit of Benj. L. Clark, if it inured to his father's benefit? But the defendants have sworn that C. L. Clark became guarantor for a valuable consideration. The $150 was the only money paid. Hence it went to the father, and not to respondent; and respondent is not estopped to show, or say by the recital in the contract, that it was paid to him. Bigelow, 245, 246, and other authorities cited. Besides, the appellants knew they were dealing with a minor, and undertook to protect themselves by taking the obligation of the father, to see that his son should make the deed when he became of age. While we agree with the counsel for the appellants that a minor should restore the consideration, if he can, before he is heard to disaffirm his contract, yet, under the peculiar facts shown by the pleadings of the appellants, we do not think it ought to be required in this case.

The next error complained of is that the plaintiff below should have given notice of his intention to disaffirm before he brought his suit. We do not think any notice of...