Huth v. Carondelet Marine Ry. & Dock Co.

• Decision Date: 31 March 1874
• Citation: 56 Mo. 202
• Parties: MARY HUTH Appellant, v. CARONDELET MARINE RAILWAY & DOCK COMPANY, Respondent.
• Court: Missouri Supreme Court

56 Mo. 202

MARY HUTH Appellant,

v.CARONDELET MARINE RAILWAY & DOCK COMPANY, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Bakewell & Farish, for Appellant.

I. It was too late to disaffirm more than three years after majority. The disaffirmance must take place within a reasonable time. (Doe vs. Smith, 3 T. R., 436; 3 Bac. Abr., 145; 3 Burr., 1719; Richardson vs. Bright, 9 Ver., 368; Bigelow vs. Hening, 3 Ver., 353; Wallace vs. Lewis, 4 Harr. Mich., 75; Hastings vs. Dollarhide, 24 Cal., 245; Jenkins vs. Jenkins, 12 Iowa, 198; Blenkensop vs. Stout, 25 Ill., 132.)

II. The voidable contract of an infant will be ratified by tacit consent. (Law vs. Lovejoy, 8 Me., 405; Kline vs. Beebe, 6 Conn., 506; Robinson vs. Weeks, Am. Law Reg., 1869, p. 554; Scott vs. Buchanan, 11 Humph., 468; Kent's Com., 238, note; Sto. Cont., 572-4, Ed. 1847.)

S. N. Holliday, for Respondent.

T. T. Gantt, for Respondent, cited in argument: Peterson vs. Laik, 24 Mo., 541; Youse vs. Norcum, 12 Mo., 549.

NAPTON, Judge, delivered the opinion of the court.

This suit is to recover dower in a leasehold of 14.99-100 acres.

Charles Huth, the husband of plaintiff, died in 1850, having in possession and claiming title to a leasehoid for 99 years from the inhabitants of Carondelet, granted to one Chartrand in 1843, and held by said Huth, through conveyances from Chartrand. This title was sold by Huth's administrator to the persons under whom defendant claims. The defendant, however, to defeat the claim of dower, set up a title adverse to Huth's, and insists that Huth had no title at his death, and that the deed from his administrator conveyed none,--and therefore that his widow had no dower. This adverse title is based on a deed from Chartrand to Withnell, made on the 15th day of May, 1851, and a deed from Burbayge to Withnell, dated June 19th, 1851, and Withnell's conveyance to the persons who obtained the Huth title from his administrator.

Burbayge, it seems, had a lease dated in 1840, prior to that granted to Chartrand--a lease however, containing the same conditions and reservations which the lease to Chartrand did. The rent reserved was the same, and the forfeiture of the lease depended on the failure to pay this rent within six months after it became due. This lease was conveyed by Burbayge on June 19, 1851.

It is admitted that Chartrand was under age when he made his deed to the persons who sold and conveyed to Huth; that he was only 18 years old, and that it was about three and one-half years after he became of age, that he executed the quit-claim deed to Withnell. Huth having died in 1850, in possession of the leasehold, his administrator, Fremon, advertised it for sale in accordance with orders from the Probate Court. Darby, Erskine and Carlin proposed to buy it. Whether they offered $2,500 for it on the day of the public sale, or not, is a disputed fact; but it seems that before the sale was consummated, an examination of the title was made by Darby, one of the three who proposed to buy, who was a lawyer, and objections were made to the title on two grounds; one, that Chartrand was under age when he made his deed to the grantor, Huth, and the other, that there was an outstanding lease to Burbayge. To obviate these objections and render the title proposed to be sold unobjectionable, it seems to have been agreed that these two titles should be bought up. It was therefore arranged between the administrator and Darby, Erskine and Carlin, that the administrator should report these objections to the Probate Court, and ask for an order allowing him to sell privately; and it was also agreed that John Withnell, who was a neighbor, friend and creditor of Huth, would be the most suitable person to negotiate these purchases with Chartrand and Burbayge.

It appears that Withnell's intervention was successful; that he represented himself as acting in the interest of Huth's estate, and that for $600, which he advanced, he obtained the deed from Chartrand heretofore referred to. How the deed to Withnell from Burbayge was procured is not established, but it was procured for $100, paid by Withnell, according to the recitals in the deed. The purchase money of both these deeds, though advanced by Withnell, was ultimately paid by Darby, Erskine and Carlin, so that they paid $3,200, for the lease.

Upon the trial the court declared the law to be, first; that if, prior to the deed to Chartrand in October, 1843, there was a deed in 1840 to Isaac B. Burbayge, it was a bar to plaintiff; and second, that if Chartrand was born in 1836, and in the Spring of 1851, Erskine, Darby and Carlin employed John Withnell to purchase for them the title of Chartrand to block 66, of the Common of Carondelet, and furnished the said Withnell with the money to make the purchase, and Withnell as the agent of said Darby, Erskine and Carlin, purchased said title and took a deed to himself, dated May 15, 1851, and said Withnell afterwards in June, 1851, executed to Darby, Erskine and Carlin the deed of that date read in evidence, the plaintiff cannot recover.

The court found for defendant, and the judgment was in conformity to this view.

The first declaration of law by the court was that a lease dated three years before the one to Chartrand was a bar to plaintiff's recovery. The defendants held under Chartrand. These leases from Carondelet were made upon condition of payment of rent, and they were liable to forfeiture upon nonpayment of rent within a specified time. The mere execution of a lease dated in 1840, without any proof of its acceptance, or of any payment of rent during the ten years that elapsed from its execution to the conveyance by Burbayge, was hardly sufficient to sustain this prior lease as a bar. The first instruction or declaration of law was therefore wrong.

The second declaration of law is based on the assumption that the administrator of Huth had no agency whatever in procuring the second deed from Chartrand, and that the intention of the grantor was of no importance; and that the deed of May 15, 1851, was made to a stranger to the Huth title.

The question whether this last deed of Chartrand was made to a stranger to the Huth title, or whether it was made in confirmation of his prior deed, is a question of fact, not depending altogether on the construction of the deeds, which is a question of law, but upon facts outside of the deeds. The assumption that the second deed of Chartrand was made to a stranger is totally unwarranted, for there was certainly abundance of proof that Withnell, to whom the deed was made, acted as agent of Huth's estate and was a decided friend of Huth and a client of his administrator and a creditor of the estate who had an interest in the consummation of the sale. This question was totally ignored in the instruction; and whether this second deed of Chartrand was intended as a ratification of his first deed, or not, is a matter of fact, not to be decided as a matter of law, because his second deed was to a different person.

The second instruction is based on the assumption that Chartrand's deed to Withnell, made in 1851, was to one who repudiated the title from Huth, and who claimed adversely to his estate. There is no doubt that a vendee may buy up a title antagonistic to that of his vendor, and set up the title so bought to defeat that of his vendor or of his vendor's representatives. This is agreed to be the settled law in this State. (Macklot vs. Dubreuil, 9 Mo., 477.)

But this position does not determine the merits of this case--since the main question in it is, whether the vendee purchased or procured an antagonistic title. That the title procured through the...