Means v. Wife

• Decision Date: 01 January 1852
• Citation: 7 Tex. 502
• Parties: MEANS v. ROBINSON AND WIFE.
• Court: Texas Supreme Court

7 Tex. 502

MEANS

v.ROBINSON AND WIFE.

Supreme Court of Texas.

1852.

The rights of infants and persons claiming under them, in respect of contracts made and acts done before the introduction of the common law, must be determined by the principles of the laws of Spain, which were then in force in this country.

The privileges and disabilities of infants under the Spanish law discussed, and the conclusion applicable to this case attained, that the written assent of the curator and the authority of the judge were essential to a valid alienation of the real estate of the minor; but if there was no curator, and the minor was over fourteen years of age, the sale was valid without such assent, provided there was no lesion, and provided the authority of the judge was obtained.

The void contract of an infant might, under the Spanish law, be ratified by him, either expressly or tacitly, after arriving at full age, without any of the formalities required by law to give validity to a minor's contract; and acts done after majority, from which approbation might be inferred, was a sufficient ratification. (Note 70.)

Under our former laws, as at common law, minors attained majority at the age of twenty-one years.

Appeal from De Witt. The appellees sued for the recovery of a tract of land, and claimed under a conveyance from Charles M. Lockhart to the plaintiff Solena, executed on the 16th March, 1846. The defendant claimed under a conveyance from the said Charles and his mother, Winney Lockhart, dated May 15, 1837, to one Thomas T. Chumney, and by deed from the said Chumney and his wife to the defendant, dated 24th April, 1847.

The land in controversy was the upper half of a league lying on the Guadaloupe river, granted to Samuel Lockhart, as a colonist, by the authorities of the State of Coahuila and Texas. The said Samuel departed this life in 1836, leaving as sole survivors his widow, the said Winney, and their son, the said Charles M. Lockhart. The questions in the case grew out of the minority of Charles M. Lockhart at the date of his conveyance to Chumney.

One of the witnesses testified that the father, Samuel, removed to Texas between 1829 and 1831, his son Charles being then ten or eleven years old; another, that Charles became of age in August, 1840; that he had seen the record of his age in the family Bible; that Charles had told him in 1842 that he and his mother had sold the upper half of the said league to Chumney; that the said Charles told him that the said league of land was divided, and that the upper half belonged to Chumney; and that the said Charles also informed witness that the consideration paid by Chumney was $200 in money and a certificate for 1,280 acres of land located on the Sandies; that the said Chumney had been very kind to him and his mother by buying said land, as it kept them from starving at the time; and that he, Lockhart, was well satisfied with the sale made to Chumney. The witness also stated that he purchased part of the lower half league, in 1839, from Charles M. Lockhart and his mother, amounting to 1,260 acres.

A letter dated 5th June, 1840, from Charles M. Lockhart to the said Chumney, was read in evidence. A portion of this letter was as follows: “You requested me to inform you concerning your land you bought of me, the Government dues, & c. I know of no dues to be paid more than taxes, with an exception, perhaps, of some few dollars to be paid for dividing the land. As that is coming to only one individual, who paid the surveyor, and is also a very small matter, I know not how much, it is of little consequence. One half only is to be paid by you. If he, Mr. Friar, should want his money, I will satisfy him. I sold 1,269 acres to Daniel Friar, who now resides on it. I still retain 937 acres of the same tract. You also wished to know something of a power of attorney to make to me. You empowered me all that was necessary to obtain the patents. You gave a power of attorney, together with your bond, which is all that is necessary,” &c.

There was also evidence (the admissibility of which was excepted to by the defendant) that the upper was, by five hundred dollars, more valuable than the lower half of the league. The following instructions were given by the court:

“1. If the jury believe from the evidence that the deed from Charles M. Lockhart and Winney Lockhart to Chumney was made before he was twenty-one years of age, then such deed may be avoided by him after he arrived at the age of twenty-one years.

2. That if the jury believe from the evidence that Charles M. Lockhart was twenty-one years of age when he executed the deed to Solena Robinson, and that he was a minor when he made the deed to Chumney, then the conveyance to Robinson was an avoidance of the deed to Chumney.

3. That a mere recognition of the sale and conveyance made to Chumney by Charles M. Lockhart, or acknowledgment that such a sale has been made, is not such an act as amounts to a confirmation of the conveyance.

4. That if the jury believe from the evidence that the deed to Chumney was made while Charles M. Lockhart was a minor, and there was not any act of confirmation equal in solemnity with the original conveyance, then the deed to Robinson was an avoidance of the contract with Chumney, and the defendant has no title so far as Charles (M. Lockhart) was concerned or interested.”

The jury found for the plaintiffs one half of the upper half of the league of land set forth in the petition; and a motion by the defendant for a new trial, on the ground that the verdict was contrary to evidence and that there was error in the instructions to the jury, was overruled.

The errors assigned were--

1st. In allowing deed of plaintiffs to be read to the jury.

2d. In permitting evidence to be given of the relative value of the half league in controversy.

3d. In instructions to the jury.

4th. In overruling the motion for a new trial.

A. H. Phillips, for appellant.

I. The court erred in allowing the following question to be asked the witness Friar: “Which half of said league of land was the most valuable?” It was totally irrelevant to the issue made by the pleadings.

II. The court erred in the instructions to the jury. The first instruction is objectionable, as tending, by its absolute and unrestricted terms, to withdraw the minds of the jury from all consideration of any evidence that may have been adduced as to acts done by Charles M. Lockhart after he became of age.

The second instruction charges on the weight of the evidence. (Hart. Dig., art. 753.) It effectually decides upon, and instructs them to disregard, all the testimony introduced tending to prove acquiescence, approval, confirmation, or laches in disaffirming on the part of Lockhart. (Cobb v. Beal, 1 Tex. R., 342.) The instruction could be correct only in the event that a minor's deed was incapable of confirmation. But the doctrine is well established to the contrary. (Lynch v. Parsons, 2 Burr., 263; Boston Bank v. Chamberlin, 15 Mass. R., 230; 1 Story's Eq., sec. 241; 2 Kent's Comm., 233; 11 Johns. R., 538;14 Id., 124; 5 Ham. R., 251.)

The third instruction also decides on the testimony.

The fourth instruction is clearly erroneous. (10 Pet. R., 75; 3 M. & Selw., 482; 11 Johns. R., 542; 3 Bac. Abr., 145, n. 8; 2 Kent's Comm., 236, 237, 238; 6 Conn. R., 494; 5 Yerg. R., 41.)

III. A new trial should have been granted. The verdict was contrary to the evidence. It appears from the testimony of Friar, and from the letter of the 5th June, 1840, that Lockhart actually approved the conveyance after his majority. In his conversation with Friar, two years after he was of age, he expressed his satisfaction with the contract and his gratitude to Chumney, who, by his timely consent to the contract, “had saved himself and his mother from starvation;” also, that “the third of a league he had received in exchange, apart from the $200, was worth more than the land held by Chumney.” Here we have an admission, 1st, of a full price; 2d, that part consideration was for necessary subsistence; 3d, of entire satisfaction two years after majority; 4th, of acts done respecting the division line; and, lastly, it shows that there were mutual conveyances, and that he, Lockhart, was then in possession of the land received from Chumney, and, for aught that appears, holds it still. Lockhart, then, is a purchaser as well as vendor, under one and the same contract. His remaining in possession of his purchase after his majority fixes his responsibility as to the entire contract. (10 Petdf. Abr., p. 569, note; 11 Johns. R., 538; 2 Kent, 240; 11 Wend. R., 85.)

But by his letter of the 5th June, 1840, in connection with Friar's testimony, it is clear he writes to Chumney respecting the land he conveyed and received; or, in other words, he speaks of their exchange of lands, and offers to pay on behalf of Chumney for running the division line. Is not this an act in favor of the contract? Was it not an assent after he had been of age for a reasonable time; not tacit, but express, and under circumstances that must fix his responsibility? (2 Kent, 238.)

IV. Thus far I have considered this case (as maintained by the opposite counsel and the judge in the court below) under the common-law rules of decision.

The court, however, will recollect that the contract with Chumney was made in 1837, under the civil law. The controversy, then, must be determined by the civil-law rules of decision. (Dallam, 550.)

By the act of 1840, (Hart. Dig., art. 3225,) relative to the mode of trying titles to land, it is provided--

“That it shall not be necessary to prove an actual trespass on the part of the defendant to support this action; nor shall this act be so construed as to alter, impair, or take away the rights of parties under the laws in force before the introduction of the common law; but the same shall be decided by the principles of the law or laws under which the same accrued, or by which the same...