Hoffert v. Miller

Decision Date19 January 1888
Citation6 S.W. 447,86 Ky. 572
PartiesHOFFERT et al. v. MILLER.
CourtKentucky Court of Appeals

Appeal from chancery court, Kenton county.

This action was brought by Ambrose Miller and Charles L. Miller against William Hoffert and John Pletcher, and the wife and children of the latter, to set aside conveyances of land. Judgment for the plaintiff Charles L. Miller. Defendants appealed.

Simmons & Schmidt and Collins & Fenley, for appellants.

Wm Goebel, for appellee.

LEWIS J.

July 11, 1868, Mary Miller, entitled, under the will of her husband, John Miller, to a life-estate, and his sons Winchans, Ambrose, and Charles L. Miller, entitled to the fee in remainder, by a joint deed conveyed their respective interests in a lot of land, for the recited consideration of $300, to William Hoffert and John Pletcher, who then entered into possession. This action was instituted August 19, 1884 by Ambrose Miller and Charles L. Miller against Hoffert Pletcher, and the wife and children of the latter, to whom a conveyance of an interest in the lot was made subsequent to 1868, to set aside and cancel the first-mentioned deed, and also the one made to Catherine Pletcher and her children, and to recover two-thirds of the lot, Mary Miller, the widow of John Miller, having died in 1877.

Two grounds are relied on in the petition for the judgment prayed for: (1) That the deed was procured by the fraudulent representations of the vendees, and ignorance of the plaintiffs of the condition and value of the estate inherited from their father; (2) that the plaintiffs were, at the date of the deed executed by them, infants. As both the plaintiffs were of full age more than 10 years before the commencement of this action, recovery for the alleged fraud is barred by the statute of limitations, in such case provided. The evidence clearly shows that Ambrose Miller was more than 21 years of age when the deed of 1868 was executed, and the petition was, as to him, properly dismissed. But appellee Charles L. Miller, as is both shown and admitted, then lacked about 20 days of being 21 years of age, and judgment was rendered in his favor for one-third of the lot. The deed of an infant conveying real estate, when any valuable consideration passes to him, is, as well settled by this court, not absolutely void, but voidable merely. Philips v. Green, 3 A. K. Marsh. 7; Same v. Same, 5 T. B. Mon. 345; Breckenridge v. Ormsby, 1 J. J. Marsh. 236. And he has an election, after his disability is ended, to affirm or avoid it. To confirm it is not indispensable that he should reacknowledge the first or execute a new deed, but he may do so, after full age, by an act in pais. But conveyances of an infant are not so easily ratified as his purchases, and something more than bare recognition or silent acquiescence is necessary to a binding confirmation, unless prolonged for statutory limitation. There must be some positive act or words of the minor from which his assent of the deed executed during his minority may be inferred. Tyler, Inf. 84; 2 Kent, Comm. 238; Wheaton v. East, 5 Yerg. 41. Says Story: "Without undertaking to apply this doctrine to its fullest extent, [that is, that the act, after full age, should be of as great solemnity as the original instrument,] and admitting that acts in pais may amount to a confirmation of a deed, still we are of the opinion that these acts should be of such a solemn and unequivocal nature as to establish a clear intention to confirm the deed, after a full knowledge that it was voidable. A fortiori, mere acquiescence, uncoupled with any acts demonstrative of an attempt to...

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33 cases
  • Elkhorn Coal Corporation v. Tackett
    • United States
    • United States State Supreme Court — District of Kentucky
    • December 20, 1935
    ...our question here is, Did these women unduly defer doing what they have done? We had such a question before us in Hoffert v. Miller, 86 Ky. 572, 6 S.W. 447, 9 Ky. Law Rep. 732, where Miller was endeavoring to recover property he had conveyed while an infant. He had sued sixteen years, one m......
  • Clifford Stanley Spencer v. Lyman Falls Power Co.
    • United States
    • Vermont Supreme Court
    • January 4, 1938
    ... ... Hyde ... v. Barney , 17 Vt. 280, 283, 44 Am. Dec. 335. Though ... a minor, his deed passed title. Hoffert v ... Miller , 86 Ky. 572, 6 S.W. 447, 448; Irvine ... v. Irvine , 9 Wall. 617, 626, 19 L.Ed. 800, 803 ...           The ... deed ... ...
  • Elkhorn Coal Corp. v. Tackett
    • United States
    • Kentucky Court of Appeals
    • December 20, 1935
    ... ... they have done? ...          We had ... such a question before us in Hoffert v. Miller, 86 ... Ky. 572, 6 S.W. 447, 9 Ky. Law Rep. 732, where Miller was ... endeavoring to recover property he had conveyed while an ... ...
  • Spencer v. Lyman Falls Power Co., 460.
    • United States
    • Vermont Supreme Court
    • January 4, 1938
    ...by deed cannot be doubted. Hyde v. Barney, 17 Vt. 280, 283, 44 Am.Dec. 335. Though a minor, his deed passed title. Hoffert v. Miller, 86 Ky. 572, 6 S.W. 447, 448; Irvine v. Irvine, 9 Wall. 617, 626, 19 L.Ed. 800, The deed of an infant is voidable, and may be ratified or disaffirmed by him a......
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