Cummings v. Powell

• Decision Date: 01 January 1852
• Citation: 8 Tex. 80
• Parties: CUMMINGS v. POWELL AND OTHERS.
• Court: Texas Supreme Court

8 Tex. 80

CUMMINGS

v.POWELL AND OTHERS.

Supreme Court of Texas.

1852.

A void act is one which is entirely null, not binding on either party and not susceptible of ratification; and a voidable act is one which is obligatory upon others until disaffirmed by the party with whom it originated, and which may be subsequently ratified or confirmed.

The difference between the Spanish and the common law, in respect to the terms “null” and “void” in their application to the contracts of minors, &c., discussed.

The tendency of decisions, for a century at least, has been for the extension of the rule that the acts of infants shall be deemed voidable only, and subject to their election either to affirm or disallow them.

On examination of the authorities, and with due regard to the object to be attained by the privilege of the infant, viz, his protection, we are justified in concluding that any delivery of a deed or thing granted which, if done by an adult, would pass the title, will, if done by an infant, be voidable but not void; and that if the semblance of benefit be regarded as a criterion, the more rational and consistent rule would be that the act should not be deemed void unless it was one of those which, as a general principle, for the benefit of the infant had better be deemed void than voidable.

Quere? As to whether an infant's power of attorney is void or merely voidable.

The sale and delivery of chattels by a minor may be avoided while under age; but the sale of real estate by a minor cannot be avoided on the ground of infancy merely until after he arrives at full age, although it seems he may enter and enjoy the rents and profits.

No case has been cited in which an infant has by himself or guardian attempted, while within age, to recover lands passed from him by an executed conveyance on the ground of infancy merely, and it is probable that none such can be shown.

Quere? Where an infant has sold real estate, and after arriving at full age wishes to avoid the sale, whether he ought not to give notice of his intention to disaffirm before bringing suit.

Where it is sought to set aside a sale of real estate on the ground of infancy, there should be an offer to restore the purchase-money. (Note 19.)

Error from Walker. The plaintiffs in error, viz, Elem and James Cummings, being minors, sued by their guardian for the undivided two-thirds of a half league of land, alleging that they had been with their adult brother, William Cummings, joint owners of the half league, and that in the year 1846 the defendant James Powell had fraudulently procured them to join with their said brother in a sale of the said land to the said defendant, and that the latter had since sold portions of the same to the other defendants who were holding, using, and cultivating the same.

They prayed that their deed to Powell, so far as it affected their interests, be declared void; that the deeds from Powell to his co-defendants be set aside; that partition be made and petitioners be put into quiet and peaceable possession of their respective shares.

The defendants demurred generally, and filed other pleas not necessary to be noticed. The demurrer was sustained and the petition dismissed.

Yoakum and McCreary, for plaintiffs in error.

The ground taken by the defendants below and sustained by the court in dismissing the suit is, that the deed made by the minors is not void but only such as may be avoided by them on attaining their majority.

But the guardian, we contend, is not bound to sit down and see his wards stripped of their possessions by their own deeds; but he has the right, and it is his duty, to take care of their estate, and account for rents and profits. Hence the right to control and avoid any of those acts which could dispossess them, and to sue for and recover their property; to eject trespassers, and do everything for them which they could do to protect their own interests if they were of lawful age. The guardian is the legal representative of the infant. Clerke says, speaking of infants, “His acts are either void or voidable. This distinction is not conclusively settled, although the opinion of Lord Chief Justice Eyre is regarded with much satisfaction, that when the court could pronounce the contract to be prejudicial to the infant, it was void; when beneficial, valid; when of dubious benefit or prejudice, voidable only at his election.” (Rudiments and Practice, p. 57.) According to this view of the case, when the infant, by his legal representative, elects to declare the deed void, will the court undertake to say, upon looking at the petition, that it is beneficial and valid? The court below, having high chancery jurisdiction, will protect the rights of infants, being their guardian. But we think by the law the deed to Powell is void and not voidable. Story says, “And in respect to the acts of infants of a more solemn nature, such as deeds, gifts, and grants, this distinction has been insisted on; that such as do take effect by delivery of his hand are voidable; but such as do not so take effect are void.” (Eq. vol. 1, sec. 241; see authorities there cited, Zouch v. Parsons, 3 Burr. R., 1794; Perkins, sec. 12; 8 Am. Jurist, 327, et seq.) Nor is it necessary to aver specific fraud. The act itself is a fraud. (1 Story's Eq., sec. 242.) So far as the opinion of the civilians is of weight, they are decided on the point. Grotius places a contract with an infant on the same footing with one made with a lunatic or an idiot. (De jure Belli. Grot., B. 2, ch. 11, sec. 5; so also the Institute, Lib. 3, Tit. 20, secs. 8 and 10; Dig., Lib. 50, Tit. 17; Paudicts, B. 2, Tit. 38, p. 216, et seq.

In the different States many conflicting authorities are found. In Connecticut, unless the contracts have a semblance of advantage to the infant, they are void, (4 Day, 59;6 Conn., 494;) North Carolina, (1 Hayw. R., 143; Hoyle v. Stowe, 2 Dev. & Batt. R., 320;) Maryland, (Fudge v. The State, 3 Gill. & Johns. R., 103; 11 Id., 314; Salmon v. Claggett, 3 Bland Ch. R., 125; (New York, (Bool v. Mix, 17 Wend. R., 119;) but still the infant may enter and take profits; (Stafford v. Root, 9 Cowen, 626; Roof v. Stafford, 7 Id., 22,) decided both ways.

An infant's legal representatives can avoid a deed made by the former. (Roberts v. Wiggin, 1 N. H. R., 73. Clerke lays down the same rule. (Rud. and Practice, 57.

All the books say there must be an affirmance; and the most of them say it must be express. (19 Wend. R., 301; 14 Johns. R., 124.)

In the case of Wheaton v. East, (5 Yerg. R., 41,) the doctrine is laid down that the contract is voidable. Yet the court heard all the proof to show the consideration; that it was fair and full; that the minor wanted but a few months of his majority when he made the contract, and did not bring his suit for nearly four years after the sale.

The petition, in asking that the deed to Powell be declared void, and that they be remitted to the possession of the premises, asks nothing inconsistent with either view of the law. They aver in their petition that Powell fraudulently procured them to join with their brother William in the execution of the deed of the 15th May, 1846; that they were then, and still are, minors; they aver no sale; no considerations; but charge that Powell fraudulently procured them to execute the deed.

The fact of their infancy is a badge of fraud. (1 Story's Eq., sec. 242, above cited.) The petition certainly shows sufficient on its face to authorize the court below to hear the proof. Whether the deed be void or voidable the guardian can avoid it. Can he do it in any other way than by asking the court in behalf of his wards to set it aside? Or can he be justified in submitting to the adverse possession of the defendants, and permitting them to reap the fruits and destroy the lands and timber till his wards come of age? Suppose his wards were to call him to account for the way he had managed their estate, would he be excused by setting up this conveyance to Powell? The adoption of such a principle would release every guardian who chose to have his ward's property wasted. (6 Rand. R., 556.)

If the guardian or his wards wished to disaffirm a sale made by his wards, a suit is conclusive evidence of that disaffirmance. (Sellars v. Davis, 4 Yerg. R., 506.)

Perhaps there is not a case in the books where a guardian could be excused on such grounds. And the court below, sitting as a court of equity, if it would not avoid the deed of the minors, should at least have remitted them to the possession and given it to the guardian for the debts of the minors for necessaries, for expenses of guardianship, &c. But if he is estopped by their deed, a guardian is liable to be defrauded by a stranger's meddling with the estate of his wards, and has no remedy.

HEMPHILL, CH. J.

The ground upon which the demurrer was supported below, and which has been urged, is that the deed made by the minors was not void, but voidable, and could be avoided by them only after attaining majority.

We will consider, in the first place, whether the deed be void or voidable. It is important to ascertain the exact signification of these terms, as upon that depends the character of the act, and the rights, obligations, and liabilities of parties and of strangers to the transaction. A void act, as defined in the latter cases and by approved authorities, is one which is entirely null, not binding on either party, and not susceptible of ratification; and a voidable act is one which is obligatory upon others until disaffirmed by the party with whom it originated and which may be subsequently ratified or confirmed. Such is the import of these terms; but on examining the earlier cases it will be found that they were frequently confounded. The term void was frequently used when it was intended to imply only that the act was not binding, or that its obligation might be avoided by the infants. (Bingham on Infancy, p. 18.)

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