County Bd. of Ed. v. Hensley

• Decision Date: 08 March 1912
• Citation: County Bd. of Ed. v. Hensley, 147 Ky. 441, 144 S. W. 63 (Ky. Ct. App. 1912)
• Parties: COUNTY BOARD OF EDUCATION v. HENSLEY.
• Court: Kentucky Court of Appeals

144 S.W. 63

147 Ky. 441

COUNTY BOARD OF EDUCATION v. HENSLEY.

Court of Appeals of Kentucky.

March 8, 1912

Appeal from Circuit Court, Harlan County.

Action by John H. Hensley against the County Board of Education. From a judgment for plaintiff, defendant appeals. Reversed with instructions to dismiss the petition.

G. A Eversole and George R. Pope, for appellant.

H. C Clay, for appellee.

MILLER J.

On July 9, 1907, the trustees of common school district No. 1, in Harlan county, the predecessor of the appellant, bought 3 1/2 town lots in Mt. Pleasant or Harlan town from the appellee, John H. Hensley, for school purposes. The agreed purchase price was $400 in cash, but there being a vendor's lien upon this and other property for $300, that amount of the purchase money was appropriated to the discharge of the lien, which was released by the vendor on the same day. On September 12, 1910, Hensley brought this suit for the purpose of canceling his former deed, and to recover the property, upon the ground that he was an infant when he made the conveyance on July 9, 1907. Hensley alleged that he was born on December 10, 1886; and, if that be true, he did not reach his majority until December 10, 1907, which was five months after he executed the deed. Appellant presented these defenses: (1) It denied that Hensley was an infant when he made the deed. (2) It charged that he was over 21 years of age, or that he falsely represented himself to be over 21 years of age at the time he executed the deed. (3) That he stood by and saw appellant build a schoolhouse upon the lot at a cost of $500 without objection or protest, and that he is thereby estopped from now relying upon his infancy. The chancellor granted the relief prayed, directed the cancellation of Hensley's deed to the school trustees, and a restoration of the property; and from that judgment the defendant prosecutes this appeal.

Hensley's father and mother have been dead for many years. Upon the question of his infancy the weight of the proof is with Hensley; indeed, the only specific testimony upon that point was by his grandfather and an uncle by marriage, who established the date of Hensley's birth as December 10, 1886. There is no direct testimony contradicting them. It appears, however, that Hensley was a married man, with two children, and from all appearances was more than 21 years of age. Furthermore, he had been engaged in business upon his own account for several years, trading in real estate and live stock. He had sold his farm which he inherited from his father, and bought the town lots now in controversy and other lots from Grant Smith on April 6, 1907, about three months before he made the conveyance to the school board. In 1906 and 1907 the sheriff of the county had collected a poll tax from appellee. He says he had probably voted in political conventions, though never in a primary election. All of these facts were well and generally known in the community. When Turner Howard, the school trustee who made the purchase from Hensley, asked Hensley if there was anything that would prevent him from making a good deed to the lot, Hensley answered that there was nothing except a part of the purchase price which constituted a lien on the lot, whereupon Howard said the trustees would pay that and have the lien released. Hensley claims that he paid the money himself, and that it was not paid by the school board. This, however, is immaterial, since it is evident that the purchase by the school trustees and the release by Howard were contemporaneous transactions, and that $300 of the trustees purchase money was used in the discharge of the lien.

While there may be some conflict upon the question in other jurisdictions, it is well settled in this state that where an infant has conveyed land for a reasonable price, representing at the time that he was of age, and has thereby induced the grantee to part with the consideration, the trade being fairly made, and the grantee having no notice that the grantor was under age, the infant will be bound by his deed. And the rule denying relief to the infant is not restricted in its...