Commander v. Brazil

• Decision Date: 28 May 1906
• Citation: Commander v. Brazil, 88 Miss. 668, 41 So. 497 (Miss. 1906)
• Court: Mississippi Supreme Court
• Parties: HENRY COMMANDER v. HEZEKIAH BRAZIL

41 So. 497

88 Miss. 668

HENRY COMMANDER v. HEZEKIAH BRAZIL

Supreme Court of Mississippi

May 28, 1906

FROM the chancery court of Monroe county, HON. BAXTER MCFARLAND Special Chancellor.

Brazil the appellee, was complainant in the court below; Commander the appellant, was defendant there. From a decree in complainant's favor the defendant appealed to the supreme court.

Appellant Commander, and his stepfather, McDaniel, entered into business as liverymen, and purchased from the wife of appellee, Brazil, certain horses, carriages, etc., giving notes for the purchase money, which notes were secured by a trust deed on the personal property transferred, and as additional security embraced in said trust deed a tract of land belonging to appellant. McDaniel afterwards died (according to the allegations of the bill, intestate and insolvent), and the payment of the notes having failed, and the personal property conveyed in said trust deed having been sold, and the amount realized from the sale not being sufficient to liquidate said notes, Mrs. Brazil, wife of appellee, filed the bill in chancery in this case, praying an accounting to ascertain the amount due on the indebtedness, and for the sale of the land and the application of the proceeds to the payment of the balance found to be due. Pending the suit, the appellee, having acquired the claim by assignment from his wife, became a party to the suit. The appellant, Commander, filed a plea setting up that he was an infant when the contract was made, which, being overruled by the court, he answered, making his answer a cross-bill, and denied that he received any benefits from the property purchased by him and his stepfather, and charged that the complainant knew of his infancy at the time the trust deed was executed, which facts were denied by the cross-defendant. The court below rendered a decree upon the pleadings and proofs granting the relief prayed by complainant, ordered the land sold, and the payment out of the proceeds of said sale of the amount due appellee.

Affirmed.

W. H. Clifton, for appellant.

The contracts of infants, except for necessaries which their guardian fails to supply, impose no liability at law upon them which is not voidable at their election. They may be liable in a suit at law for deceit or fraud, but the action must be in trespass or tort and not on the contract. Fraud, however, will prevent the disability from being pleaded in equity. If an infant of comprehensive age procure an agreement or contract to be made through false and fraudulent representations that he is of age, a court of equity will enforce his liability as though he were an adult. Ferguson, v. Bobo, 54 Miss. 121; Brantley v. Wolf, 60 Miss. 420; Yaeger v. Knight, 60 Miss. 730; Upshaw v. Gibson, 53 Miss. 341.

In every sale of a chattel, if possession be at the time in another and there be no covenant of warranty of title, the rule of caveat emptor applies, and the party buys at his peril. But if the seller has possession of the article sold and he sells as his own, and not as agent for another, and for a fair price, he is understood to warrant the title. Benjamin on Sales, 3 Am. ed., pp. 627, 639; Long v. Hickinbotham, 6 Cush., 787, 789.

Where in the sale of personal or real property the vendee protects himself by covenants of warranty and is let in possession, he cannot defend himself against the payment of the purchase money without a previous eviction, unless in cases where there has been fraud. 2 Kent's Comm., 471; Brown v. Smith, 5 How. (Miss.), 395; Wafford v. Ashcraft, 47 Miss. 646.

The rule is different though where the grantor is insolvent and title invalid. Waddell v. Latham, 71 Miss. 357 (s.c., 15 So. 32); Wailes v. Cooper, 24 Miss. 232.

Where the suit for purchase money of chattels is brought by a fraudulent or insolvent grantor, the grantee in possession under a plea of failure or want of consideration may show a breach of the warranty, by proof of an invalid title or of encumbrances on the property. Dancy v. Suggs, 46 Miss. 606.

George C. Paine, for appellee.

The decree of the court below is based on the facts as disclosed by the testimony. This being true, this court must accept the findings of the chancellor, unless it is clearly and manifestly wrong. Derdeyn v. Donovan, 81 Miss. 697 (s.c., 33 So. 652); Melchoir v. Kahn, 38 So. 437.

The court will observe that Chancellor Muldrow, by his decree, settled the plea of infancy. His decree was correct under the law as announced in the recent case of Ostrander v. Quin, 84 Miss. 230 (s.c., 36 So. 257).

MAYES, J. CALHOON, J., concurring.

OPINION

MAYES, J.

We think this case was correctly decided on the facts, and would affirm it without any opinion were it not that there is involved the question as to whether or not a minor may make false representations as to his age, thereby inducing a contract with another person and accepting the benefits to be obtained under the contract, and afterwards escape liability by proving that he was not of age at the time of making the contract. The case of Ostrander v. Quin, 84 Miss. 230 (36 So. 257), comes very near deciding this question; but, inasmuch as there is some question as to whether the decision was based on the ground that the minor in that case used the money for necessaries, and because it was so used the court held him liable, we deem it necessary to remove all doubt on this subject. The record in this case shows that W. H. Commander was nineteen years and nine months old at the time he bought out the livery stable and executed the deed of trust in question; that he was asked the direct question, two or three times, while negotiations were being held, as to his age, and he stated he was of age; that appellee made the trade with him in good faith believing him to be twenty-one years of age, and on faith of the contract turned over to him the entire livery business--the appellant executing at the same time a deed in trust on the live stock, buggies, etc., so sold by appellee to him, and giving as additional security a deed of trust on fifty acres of land. The appellant having failed to pay according to his contract, and the personal property sold him by appellee having been sold under the deed in trust and not bringing enough to satisfy the debt, the land is now resorted to. It may be stated in this connection that the proof shows that the personal property sold had been much abused by misuse and neglect. Under these circumstances, can appellant successfully set up his minority as a defense to foreclosure proceedings?

Perhaps there is no subject in the law that has received more elaborate discussion, or wherein there is more hopeless conflict of authority, than the...