Craig v. Van Bebber

• Decision Date: 02 June 1890
• Citation: 100 Mo. 584,13 S.W. 906
• Parties: CRAIG et al. v. VAN BEBBER et al.
• Court: Missouri Supreme Court

13 S.W. 906

100 Mo. 584

CRAIG et al. v. VAN BEBBER et al.

Supreme Court of Missouri.

June 2, 1890.

INFANCY — DISAFFIRMANCE OF DEED — HUSBAND AND WIFE.

1. When a minor conveys land, and, after attaining majority, brings an action of ejectment to recover it, it is not necessary to set out in the petition a disaffirmance of the conveyance.

2. In such an action, when it appears that the minor has no other property, he may recover the land without returning so much of the purchase money as has been paid.

3. An offer, after attaining majority, to execute a confirmatory deed on the payment of the balance of the purchase money, is not a ratification.

4. Under Code Mo. § 3295, which provides that a conveyance by a husband, during coverture, of any interest in his wife's real estate, shall be invalid unless jointly executed by husband and wife, and by her duly acknowledged, when the wife was an infant at the time of the conveyance, it is void as to the husband as well as to her.

Appeal from circuit court, Linn county; HARRY LANDER, Special Judge.

W. J. Patterson and Silver & Brown, for appellants. H. K. West and A. W. Mullins, for respondents.

BLACK, J.

This is an action of ejectment for 100 acres of land, commenced by Ella Craig and her husband, Daniel Craig, against Van Bebber, Tully, and Sprankle. The plaintiff Ella Craig inherited the land from her father; and she and her husband conveyed the same to Henderson Tabor by a deed dated the 28th July, 1884, for the consideration of $1,463. Of this amount, Tabor paid in cash $350, and executed to them his four notes, due in one, two, three, and four years, for the balance of the purchase price, and secured the same by a deed of trust on the land. The sale was made through an agent, and the agreement was that the plaintiffs should have the first deed of trust. It seems however, that Tabor gave a deed of trust on the land to secure a debt of $800, which was by some manipulation made prior in point of time to the one given the plaintiffs for purchase money. This prior deed of trust was made by Tabor to one J. B. Watkins as trustee. By virtue of authority set out in the deed of trust, Watkins constituted W. J. Patterson his attorney in fact to act for and in his behalf. Patterson, as such attorney in fact for Watkins, advertised and sold the property to defendant Sprankle on the 8th October, 1886. The other defendants are the tenants of Sprankle. The plaintiff Ella Craig was a minor, 16 years of age, when she and her husband executed the deed to Henderson Tabor. The notes executed by Tabor are now in the possession of plaintiffs, and have not been paid. Mrs. Craig became 18 years of age on the 18th day of March, 1886; and this suit was commenced in November, 1886, to disaffirm the deed made by her while a minor. Plaintiffs did not offer to refund the $350. The evidence offered to show a ratification is, in substance, this: As soon as the plaintiffs learned that their deed of trust was a second lien instead of the first, they demanded a first deed of trust, according to their contract; but their demand was refused. They also demanded payment of the notes, which was refused. They executed a new deed after the wife became of age, and offered to deliver it, provided the notes were paid or secured by a first deed of trust, but upon no other condition. The plaintiff David Craig, being asked if any suit had been brought for the collection of the notes, said: "I think there has been, — at Linneus, I think." It does not appear when the suit was brought, or what became of it. The notes, it is agreed, are in the possession of plaintiffs.

1. The point made here, and by a refused instruction, that the plaintiffs should have in terms set out in their petition and pleaded disaffirmance of the deed, is not well taken. Where a minor executes a deed of conveyance of land, and after attaining majority conveys the same land to a third person, the second deed is a disaffirmance of the first. Peterson v. Laik, 24 Mo. 541. So, too, the deed executed while a minor may be avoided by a suit in ejectment after majority. Vasse v. Smith, 1 Hare & W. Lead. Cas. (5th Ed.) 317; Tied. Real Prop. § 793. A petition which is in the ordinary form of an action of ejectment is sufficient.

2. The defendants asked, but the court refused to give, the following declaration of law: "The infancy of Ella Craig does not entitle plaintiff to recover, as no offer or tender was made by them to return to Sprankle funds or consideration received by Ella Craig, arising from the sale and conveyance of the land by her to Tabor." The theory of this instruction is that plaintiffs were bound to make a tender to Sprankle for the $350 paid them by Henderson Tabor, the grantee in the deed which the plaintiffs seek to avoid. Where the contract has been executed by the infant, and has been in whole or in part executed by the adult, and the infant, upon coming of age, repudiates the transaction, he must return the property or consideration received. This general rule has often been stated without any qualification whatever. But the weight of authority is that the rule can only apply where the infant has the property or consideration at the time he attains full age. If he has wasted or squandered the consideration or property during infancy, then he can repudiate the contract without making a tender. Tyler, Inf. (2d Ed.) § 37; Green v. Green, 69 N. Y. 553; Chandler v. Simmons, 97 Mass. 508; Reynolds v....