Mustard v. Wohlford's Heirs

• Decision Date: 05 September 1859
• Citation: 56 Va. 329
• Parties: MUSTARD v. WOHLFORD'S heirs.
• Court: Virginia Supreme Court

56 Va. 329

MUSTARD v. WOHLFORD'S heirs.

Supreme Court of Appeals of Virginia.

September 5, 1859

1. An infant sells his tract of land, puts the purchaser in possession, and executes a bond in a penalty with condition to make the title. The contract is voidable but not void.

2. In such a case the infant on coming of age, sells the land to another person, and executes to him a bond in a penalty with condition to make the title. This is an avoiding of the first contract.

3. In this state a party out of possession may sell and convey his interest in land; and therefore, though the first purchaser from the infant has been put in possession of the land, and has received a conveyance, the infant on coming of age, may convey, and his deed will avoid the first deed.

4. The effect of the disaffirmance of the first contract of the infant, by his sale after coming of age, is to render the first contract void; to extinguish any interest in law or equity which the first purchaser may have acquired under it and to entitle the vendor or the second purchaser in his name to recover possession of the land at law; and hold it free from any equity of the first purchaser.

5. If an infant after coming of age disaffirm a sale made by him whilst an infant, he becomes reinvested with the title to the property, and may demand and recover it not only from his vendee, but from any other person who may have it in possession, though he be a purchaser from his vendee.

6. If an infant after coming of age avoids his contract for the sale of his property, and sues to recover it, the purchaser is entitled to recover the consideration received by the infant, or so much of it as may then remain in his hands in kind.

7. But in a contract executory on his part, if he has during infancy wasted, sold or otherwise ceased to possess the consideration, and has none of it in his hand in kind on his arrival at age, he is not liable therefor; and may recover the property sold by him without accounting for the consideration received.

8. The purchaser from the infant, with knowledge of the sale made by him of the land after he came of age, obtains from him a deed for it. He can derive no benefit from the deed; but holds the legal title acquired under it in trust for the second purchaser; and may be compelled by a court of equity to convey said title to such second purchaser; or if he dies, to his heirs.

9. Though the second purchaser purchase with knowledge of the first purchase from the infant, he is not affected thereby the same having been disaffirmed and avoided by the second sale.

10. Any claim which the purchaser from the infant may have on account of payments made under his contract, or to obtain the deed is a personal claim against his vendor, and cannot be enforced in a suit brought by the second purchaser to recover the land; he has no interest in or to the land or the purchase money due from the second purchaser.

11. The decree reciting that the suit had been revived in the name of the heirs of the plaintiff, and they being parties to the appeal as appellees, the appellant cannot object that the suit was not regularly revived in their names.

12. The second purchaser having sued to recover the land, and the decree having directed a conveyance by the first purchaser from the infant, without providing for the payment of the purchase money appearing to be due from the plaintiff, the appellate court will amend the decree and affirm it.

Alexander Nisewander, being entitled to an undivided fifth of a tract of land, subject to his mother's life estate in one-third thereof, contracted, during his infancy, to sell his said interest to John Mustard for the sum of eight hundred dollars; and on the same day, to wit, the 16th day of January 1852, executed a title bond in the penalty of one thousand six hundred dollars, conditioned to make a good deed with general warranty to the purchaser for the said interest on the 3d of November 1853, that being the day on which the vendor would attain the age of twenty-one years. Three hundred dollars of the purchase money were paid, according to the contract, in a house and lot in Mechanicsburg. No other payment was made during the infancy of the vendor, except about forty dollars, the amount of a debt assumed for him by the vendee. For the balance of the purchase money, the vendee executed his bond, but it does not appear when it was made payable; though it was, probably, when the deed should be executed by the vendor, on or after his arrival at lawful age. It does not appear that any deed, or even title bond was ever executed to Nisewander for the house and lot in Mechanicsburg. It seems that that property was worth about three hundred dollars, and that he might have sold it for that sum if he had been of age, or could have given security to make a good title when he became of age. But not being able to do so, and being in want of money, he offered to sell it for one hundred dollars; and among others, offered to sell it to the appellant Mustard at that price. The appellant said he did not want it, but that his son Hugh would buy it. And Nisewander did sell it to Hugh Mustard and Addison Harman for about one hundred dollars; which was accordingly paid. The same property was afterwards sold by the appellant to another person for three hundred dollars, paid partly in cash and the balance in trade. Nisewander having become dissatisfied with his sale to the appellant, determined, and often declared that he would not, on his arrival at age, confirm the sale and make a deed according to his title bond; and these declarations were sometimes made in presence of one or two of the appellant's sons, but not of the appellant himself. After his arrival at age, he persisted in this determination, and so declared; and on the 8th day of November 1853 he contracted to sell his interest in the land to Samuel Wohlford for eight hundred dollars; of which one hundred dollars was paid in cash, and for the balance three bonds were executed, payable at future periods; and he executed a title bond, conditioned to make a deed before the last payment should become due. When Nisewander applied to Wohlford to make this purchase, the latter knew that the former had contracted during infancy to sell his interest to the appellant, and asked him if he did not intend to comply with his said contract: and the former replied that he did not; whereupon the latter made the purchase, and received the title bond aforesaid. A few days after this purchase the appellant endeavored to obtain from Nisewander indemnity for the money paid on their contract as aforesaid; and, failing in that, endeavored to induce Wohlford to agree to rescind his contract with Nisewander, upon the return of the money and bonds received by the latter; but Wohlford refused to do so. Shortly thereafter, to wit, on the 18th of November 1853, the appellant induced Nisewander to execute a deed conveying the land to him in consideration of the sum of nine hundred dollars, being one hundred dollars more than the amount of the purchase money before agreed upon between them; which sum of one hundred dollars was paid at the time of the execution of the deed.

Very soon after the execution of the said deed, and during the same month of November 1853, Wohlford instituted this suit for the purpose of having the deed annulled as having been fraudulently obtained by the appellant with a full knowledge of the equitable rights of Wohlford, and of obtaining the legal title to the said interest, and a partition of the land and an allotment of his several portion thereof.

The appellant in his answer admits that he obtained the deed with full notice of the prior sale and title bond to Wohlford, but says, in substance, that he had long previously purchased the same property, and received a title bond therefor from Nisewander during his infancy, of which purchase and title bond, as well as of the fact that respondent had paid a considerable part of the purchase money, the plaintiff had full notice at the time he made his purchase and obtained his title bond as aforesaid; that whether the plaintiff had such notice or not, respondent insists that having acquired the first equitable title, he had a right, notwithstanding his knowledge of any subsequently acquired equity of the plaintiff, to perfect his purchase, if he could, by obtaining a conveyance of the legal title; that although Nisewander was under age at the date of the title bond to respondent, yet it was not on that account void, but only voidable, and might be affirmed or disaffirmed at the election of said vendor, after he arrived at lawful age; that the sale and title bond to Wohlford were not a disaffirmance, but the deed to respondent was an affirmance of the said title bond to respondent, notwithstanding the payment of the additional sum of one hundred dollars as aforesaid, which was not intended to change the original contract, but merely to induce its affirmance; which respondent had a right to do.

Nisewander in his answer, admits the contracts of sale made by him with the appellant and Wohlford respectively, the former before and the latter after he became of age, and states that a considerable portion of the purchase money due under the former contract was paid, or attempted to be paid, in a house and lot for which he had no use, and owing to the advantage thus taken of him, he determined, before he became of age, and expressed the determination frequently and publicly, that he would not confirm the contract; that after he became of age he expressed the same determination to various persons, and among them to Wohlford, and offered to sell him the land, which Wohlford then bought; that after making this contract with Wohlford, he was, by...