Englebert v. Troxell

• Decision Date: 17 April 1894
• Docket Number: 5165
• Citation: 58 N.W. 852,40 Neb. 195
• Parties: FRANCIS LEON ENGLEBERT, APPELLEE, v. BENJAMIN F. TROXELL ET AL., APPELLANTS
• Court: Nebraska Supreme Court

58 N.W. 852

40 Neb. 195

FRANCIS LEON ENGLEBERT, APPELLEE, v. BENJAMIN F. TROXELL ET AL., APPELLANTS

No. 5165

Supreme Court of Nebraska

April 17, 1894

APPEAL from the district court of Douglas county. Heard below before DAVIS, J.

AFFIRMED.

George E. Pritchett, appellant, contending that the contract was beneficial to the infant and should be sustained, cited Breed v. Judd, 1 Gray [Mass.], 455; Baker v Lovett, 6 Mass. 78; Wheaton v. East, 5 Yerg. [Tenn.], 41; Radford v. Westcott, 1 Desau. [S. Car.] 596.

In some cases it has been held that services of counsel for an infant in regard to his estate are necessaries. (Epperson v. Nugent, 57 Miss. 45; Thrall v. Wright, 38 Vt. 494; Askey v. Williams, 74 Tex. 294.)

The first deed was an executed contract, and the plaintiff still retains the consideration given him for it, to-wit, my services. All the cases hold that the infant cannot disaffirm the contract and retain the consideration if he still has it. (Bartholomew v. Finnemore, 17 Barb. [N. Y.], 428; Gray v. Lessington, 2 Bos. [N. Y.], 257; Ex parte Taylor, 8 De. G., M. & G. [Eng.], 254*, Holmes v. Blogg, 8 Taunt. [Eng.], 508; 1 Parsons, Contracts [5th ed.], 322; Kitchen v. Lee, 11 Paige Ch. [N. Y.], 108; Ottman v. Moak, 3 Sand. Ch. [N. Y.], 432.)

Switzler & McIntosh, for appellant Troxell:

To avoid his executed contracts an infant must restore the consideration received by him. (Badger v. Phinney, 15 Mass. 359; Roberts v. Wiggin, 1 N. H., 73; Roof v. Stafford, 7 Cow. [N. Y.], 179; Hamblett v. Hamblett, 6 N. H., 339; Smith v. Evans, 5 Humph. [Tenn.], 70; Hall v. Butterfield, 59 N. H., 358; Bryant v. Pottinger, 6 Bush [Ky.], 473; Cummings v. Powell, 8 Tex. 82; Bozeman v. Browning, 31 Ark. 364; Ferguson v. Bobo, 54 Miss. 133; Gray v. Lessington, 2 Bos. [N. Y.], 257; Hanley v. Carroll, 3 Sand. Ch. [N. Y.], 331; Kilgore v. Jordan, 17 Tex. 355; Stuart v. Baker, 17 Tex. 421; Kerr v. Bell, 44 Mo. 125; Deichmann v. Deichmann, 49 Mo. 107; Baker v. Kennett, 54 Mo. 88; Davidson v. Young, 38 Ill. 146; Judd v. Blake, 14 Vt. 410; Bailey v. Barnberger, 11 B. Mon. [Ky.], 113; Locke v. Smith, 41 N. H., 346; Prout v. Wiley, 28 Mich. 168; Middleton v. Hoge, 5 Bush [Ky.], 478; Strain v. Wright, 7 Ga., 568; City Savings Bank v. Whittle, 63 N. H., 587; Ex parte Watson, 16 Ves. [Eng.], 265.)

Having issued his deeds in manner and form as appears in proof, the plaintiff is in equity estopped to avoid them as against innocent purchasers. (Ferguson v. Bobo, 54 Miss. 133; Bigelow, Estoppel, pp. 584-586; Overton v. Banister, 3 Hare [Eng.], 503, Esron v. Nicholas, 1 De G. & Sm. [Eng.], 118; Hall v. Timmons, 2 Rich. Eq. [S. Car.], 120; Whittington v. Wright, 9 Ga., 23; Irwin v. Morill, Dud. [Ga.], 72; Thompson v. Simpson, 2 Jones & L. [Irish], 110; Brantley v. Wolf, 60 Miss. 420; Stikeman v. Dawson, 1 De G. & Sm. [Eng.], 90; Wright v. Snowe, 2 De G. & Sm. [Eng.], 321; Ex parte Unity Joint-Stock Mutual Banking Association, 3 De G. & J. [Eng.], 63; Western Union Telegraph Co. v. Davenport, 97 U.S. 369; Goodman v. Winter, 64 Ala. 410; Merritt v. Horne, 5 Ohio St. 307; Commonwealth v. Shuman's Adm'rs, 18 Pa. St., 343; Pickard v. Sears, 6 Ad. & E. [Eng.], 469; Gregg v. Wells, 10 Ad. & E. [Eng.], 90; Griffin v. Ransdell, 71 Ind. 440; Lichtenberger v. Graham, 50 Ind. 288.)

Charles Offutt and St. John & Stevenson, contra, cited,

On the question as to the effect of the deeds to Pritchett: Kleffel v. Bullock, 8 Neb. 341; Tucker v. Moreland, 10 Pet. [U. S.], 59; Roof v. Stafford, 7 Cow. [N. Y.], 179; Beeler v. Young, 1 Bibb [Ky.], 519; McCrillis v. How, 3 N. H., 348; McMinn v. Richmonds, 6 Yerg. [Tenn.], 9; Bouchell v. Clary, 3 Brev. [S. Car.], 194; Swasey v. Administrator of Vanderheyden, 10 Johns. [N. Y.], 33; Fenton v. White, 1 South. [N. J.], 111; Hanks v. Deal, 3 McCord [S. Car.], 158; Earle v. Reed, 10 Met. [Mass.], 387; Tupper v. Cadwell, 12 Met. [Mass.], 559; Bainbridge v. Pickering, 2 W. Black [Eng], 1325; Angel v. McLellan, 16 Mass. 31; Elrod v. Myers, 2 Head [Tenn.], 33; Hull v. Connolly, 3 McCord [S. Car.], 6; Philpot v. Sandwich Mfg. Co., 18 Neb. 55; Keane v. Boycott, 2 H. Black [Eng.], 511; Uecker v. Koehn, 21 Neb. 570; Zouch v. Parsons, 3 Burr. S. C. [Eng.], 1794; Oliver v. Houdlet, 13 Mass. 237; Swafford v. Ferguson, 3 Lea [Tenn.], 292; Robinson v. Weeks, 56 Me. 102; Fridge v. State, 3 Gill & J. [Md.], 103; Van Etten v. Butt, 32 Neb. 289; Cole v. Superior Court, 63 Cal. 86; Gallatian v. Cunningham, 8 Cow. [N. Y.], 371; Hendee v. Cleveland, 54 Vt. 142; Davoue v. Fanning, 2 Johns. Ch. [N. Y.], 252.

On the right and method of disaffirming voidable conveyances of real estate: O'Brien v. Gaslin, 20 Neb. 350; Tucker v. Moreland, 10 Pet. [U. S.], 71; Jackson v. Carpenter, 11 Johns. [N. Y.], 539; Jackson v. Burchin, 14 Johns. [N. Y.], 124; Hastings v. Dollarhide, 24 Cal. 195; Roof v. Stafford, 7 Cow. [N. Y.], 179.

The return or tender of consideration received is not a condition precedent to recovery. (Shaw v. Beyd, 5 S. R. [Pa.], 309; Cresinger v. Lessee of Welch, 15 O., 194; Dawson v. Holmes, 15 N.W. [Minn.], 463; Chandler v. Simmons, 97 Mass. 514; Price v. Furman, 27 Vt. 271; Mustard v. Wohlford, 15 Gratt. [Va.], 329; Fitts v. Hall, 9 N. H., 441; Robbins v. Eaton, 10 N. H., 562; Boody v. McKinney, 23 Me. 517; Brawner v. Franklin, 4 Gill [Md.], 463.)

The acts of the guardian in taking the deed and paying the money were a breach of duty and the infant is not bound to repay the purchase money to him. (Fonda v. Van Horne, 15 Wend. [N. Y.], 631; Green v. Winter, 1 Johns. Ch. [N. Y.], 27; Parkist v. Alexander, 1 Johns. Ch. [N. Y.], 394; Evertson v. Tappen, 5 Johns. Ch. [N. Y.], 497; Hawley v. Mancius, 7 Johns. Ch. [N. Y.], 174; Schieffelin v. Stewart, 1 Johns. Ch. [N. Y.], 620; Brown v. Rickets, 4 Johns. Ch. [N. Y.], 303; Torrey v. Bank of Orleans, 9 Paige Ch. [N. Y.], 659; Hassard v. Rowe, 11 Barb. [N. Y.], 22; Putnam v. Ritchie, 6 Paige Ch. [N. Y.], 390.)

The infant has not confirmed the deeds. (1 Story, Eq. Jurisprudence, secs. 317, 319; Tucker v. Moreland, 10 Pet. [U. S.], 71.)

OPINION

The facts are stated by the Commissioner.

RAGAN, C.

On April 1, 1874, Mrs. Frances H. Englebert was the owner of lot 3 in Geise's addition to the city of Omaha. At that time she and her husband, J. Lee Englebert, executed a mortgage on said lot to Max Meyer & Bro. to secure a note of $ 378.48 due July 1, 1874. Soon after that time Mrs. Englebert and her husband removed to Des Moines, Iowa, in which city Mrs. Englebert died on the 29th of December, 1875. She died intestate, leaving her husband and one child, the appellee herein, then a boy about seven years of age. November 1, 1881, Max Meyer & Bro. brought suit in the district court of Douglas county against Mr. and Mrs. Englebert only, to foreclose the mortgage above mentioned, and obtained service upon them by publication, Max Meyer & Bro. being then ignorant of the fact of Mrs. Englebert's death.

December 17, 1881, George E. Pritchett, an attorney at law, residing at Omaha, Nebraska, informed Mr. Englebert by letter of the pendency against him and his wife of Max Meyer & Bro. 's mortgage foreclosure suit, and requested to be authorized to appear in and defend the same. Various communications took place immediately afterwards between Pritchett and Mr. Englebert, finally culminating in an agreement between them that Pritchett should defend the foreclosure suit for Englebert and his minor son, and receive as compensation for his services one-half of whatever of the lot he might succeed in saving from the lien of the Max Meyer & Bro. mortgage. In pursuance of this agreement, on the 4th day of August, 1885, Mr. Englebert and his minor son conveyed to Pritchett, subject to the Max Meyer & Bro. mortgage, an undivided one-half of the aforesaid lot. Pritchett seems to have succeeded in having the foreclosure suit, as brought, continued from time to time on one pretext or another until August, 1884.

In August, 1885, Max Meyer & Bro. filed an amended petition in their foreclosure suit, making Francis Leon Englebert, the minor son of Mr. and Mrs. Englebert, a party defendant to the action. Pritchett filed an answer on behalf of Mr. Englebert to this amended petition, and having been by the court appointed guardian ad litem for Francis Leon Englebert, also filed an answer in the action for him. These answers admitted the execution and delivery of the note and mortgage described in the foreclosure suit; alleged that the legal title to the property was at the time of the execution of the mortgage in Mrs. Englebert; her death, and that the legal title to the real estate had descended to and was then vested in the minor son, Francis Leon Englebert; that the only interest that Mr. Englebert had in the property mortgaged was a life estate as tenant by the curtesy of his deceased wife; and that the interest of the minor, Francis Leon Englebert, in the real estate could not be sold to satisfy the mortgage debt, because the action as against him was not brought within ten years from the date of the maturity of the note which the mortgage was given to secure. The court rendered a decree and ordered the life estate only of Mr. Englebert sold to satisfy the amount found due on the mortgage. This life estate was sold under a decree; the property purchased by one of the plaintiffs in the foreclosure suit, and the sale confirmed; a deed was ordered but never made to the purchaser.

On the 6th day of January, 1886, on the joint application of Mr. Englebert and his minor son, Mr. Pritchett was appointed guardian of the minor son by the county court of Douglas county; accepted the trust, and qualified therefor by taking the oath and giving bond as required by statute.

On June 1, 1886, in pursuance of an agreement between Mr. Pritchett...