Parrish v. Treadway

• Decision Date: 29 February 1916
• Parties: MAUDE PARRISH et al. v. JOHN TREADWAY et al., Appellants
• Court: Missouri Supreme Court

183 S.W. 580

267 Mo. 91

MAUDE PARRISH et al. v. JOHN TREADWAY et al., Appellants

Supreme Court of Missouri, First Division

February 29, 1916

Appeal from Pike Circuit Court. -- Hon. B. H. Dyer, Judge.

Reversed and remanded (with directions).

F. J Duvall and Pearson & Pearson for appellants.

(1) Deeds of minors are not void but only voidable, at their election upon attaining their majority, respectively. Their respective deeds were operative, sufficient to pass, and did pass, to their respective grantees, and those claiming under them, whatever right, seizin, title and estate, said grantors respectively, though minors, may have had in the property described in the petition at the date thereof. Harris v Ross, 86 Mo. 95; Huth v. Marine Ry. & Dock Co., 56 Mo. 209; Singer Mfg. Co. v. Lamb, 81 Mo. 225; Shafer v. Diete, 191 Mo. 389; Goodman v Simmons, 113 Mo. 127. (2) Unless they disaffirmed their deeds, at some period within ten years from the date they, respectively, reached their majority, they were forever thereafter barred from any rights and powers to disaffirm. Harris v. Ross, 86 Mo. 95; Linville v. Greer, 165 Mo. 398; Huth v. Carondelet, 56 Mo. 209. (3) The right to disaffirm a contract or deed, made by an infant is a personal privilege, and must be exercised by him after he attains his majority, and within ten years from that date. It is not dependent in this case, upon the death of Phoebe E. Henderson, or her occupancy of the land described in the deed. But it depends solely on the will and pleasure of the minor exercised within ten years from the date of his majority. Huth v. Marine Ry. & Dock Co., 56 Mo. 209; Jackson v. Carpenter, 11 John. 541; Harris v. Ross, 86 Mo. 96; Linville v. Greer, 165 Mo. 398.

R. L. Sutton, D. A. Ball and Hostetter & Haley for respondents.

While the Statute of Limitations relative to real actions may be a guide as to the time within which a late minor may disaffirm his deed according to the holding of some of the courts, yet in the case at bar, that principle, if conceded to be sound, would not aid the appellants. Here the children of Phoebe E. Henderson during her lifetime made deeds. They were not her bodily heirs. The most that could be claimed for them was that they were her prospective bodily heirs. They had no vested interest in the land or in the trust fund at the time of the execution of their deeds. They were not entitled to any interest in the property until the death of their mother. Consequently the Statute of Limitations would not commence to run against them until the date of their mother's death. The Statute of Limitations does not run against any one who has no right of possession; and where there is an outstanding estate, all the authorities agree that during the continuance of such particular estate, the remainderman cannot maintain an action for possession. Littleton v. Patterson, 32 Mo. 357; Carr v. Dings, 54 Mo. 95; Miller v. Bledsoe, 61 Mo. 96; Dyer v. Brannock, 66 Mo. 422; Brown v. Moore, 74 Mo. 633; Linville v. Greer, 165 Mo. 380; Givens v. Ott, 222 Mo. 422. Mere silence, however long, or omission to act, is not an affirmance. Youse v. Norcum, 12 Mo. 549; Huth v. Carondelet, 56 Mo. 210; Linville v. Greer, 165 Mo. 380, 398; Stull v. Harris, 2 L. R. A. 742.

GRAVES, P. J. Woodson, J., concurs in separate opinion.

OPINION

GRAVES, P. J.

This is a partition suit from Pike County. In 1870 Washington Treadway and wife, Elizabeth, deeded a certain tract of land in Pike County to John Treadway "for the use and benefit of Phoebe E. Henderson and the heirs of her body" as alleged in the petition. By his last will he devised to John Treadway another small tract for the same purpose. These two tracts constitute the subject of litigation here. Neither this deed nor will is in evidence. The trial court found in accordance with the petition thus:

"The court being fully advised in the premises doth find the defendant John Treadway held in trust for Phoebe E. Henderson, and her bodily heirs, the following described real estate situated in Pike county, Missouri, to-wit:"

This is not a disputed matter and details need not be given. Suffice it to say that where a child of Phoebe E. Henderson died before she did, and such child left heirs, counsel seem to have conceded that a prior deed from such child conveyed no interest as against the grandchildren. So much for the construction of these trust instruments.

Phoebe E. Henderson died March 20, 1912, leaving as her bodily heirs certain children and grandchildren. She had nine children, but only seven survived her. The two who died before she did left children. The seven children surviving the mother made deeds to their interest in the lands prior to the mother's death, except the deed of Hurley N. Henderson did not cover the nine-acre tract covered in the will mentioned. The plaintiff, Maude Parrish, daughter of a deceased son, had never conveyed, nor had her father. A daughter, Lizzie Henderson, who married first Rice and then Nelson, made a deed, but died before the mother. Appellants claim nothing under this deed. Three of the children who made deeds made them just prior to reaching their respective majorities, and the trial court found these deeds to be void. These three interests and a dispute over the attorney's fee allowed counsel for plaintiff are the only questions here.

The plaintiffs are all the heirs of the body of Phoebe E. Henderson, and the defendants are the parties purchasing from the children and John Treadway, the trustee in the instruments of trust. For the present this sufficiently states the case.

I. The finding of the court which is first challenged by counsel for appellant is:

"The court further finds Olin G. Henderson and Thomas S. Henderson and Anna N. Megowan, formerly Anna N. Wells, were minors at the time they made their deeds pleaded in the answers, and the court further finds that nothing passed to the grantees in any of said deeds."

The following unchallenged statement appears in appellant's brief:

"The record shows, that this second amended petition, in which all of the plaintiffs, except Maude Parrish, were for the first time made plaintiffs, was filed July 15, 1912. That Thomas S. Henderson was born July 12, 1876; that he and his wife executed the deed in question, August 14, 1896; that he attained his majority, July 12, 1897, which was fifteen years before the institution of this suit. That Anna N. Megowan, nee Wells, was born February 10, 1879; that she and her husband executed the deed in question August 9, 1895; that she attained her majority February 10, 1897, which was fifteen years and four months before the institution of this suit. That Olin G. Henderson was born May 9, 1881; that he and his wife executed the deed in question October 4, 1901; that he reached his majority May 9, 1902; which was ten years and two months before the institution of this suit."

It appears that the consideration paid in each instance was about $ 200, and respondents claim that the conveyance not only covered their interest in the land, but their interest in a $ 2000 trust fund in addition. The matter of consideration is not material, because not an issue under the pleadings. Upon this branch of the case there are but two questions to be answered: (1) is the deed of a minor void or merely voidable, and (2) if voidable, within what time must he disaffirm? There is no act of disaffirmance shown except the petition, so that dates are easily calculated. Seemingly the case below was tried on the theory that these deeds were void, or on the theory that they did not have to disaffirm until after the death of the mother in 1912. When made, these deeds conveyed the contingent remainder of these parties in the lands involved. The grantees took the title subject to the contingency of the death of the grantor prior to the falling in of the life estate, or in other words prior to the death of the mother. The parties so construed these deeds in the course of the trial. In the record we find:

"Mr. Gene Pearson: I now offer in evidence 'Defendants' Exhibit Three,' being a warranty deed from Lizzie Rice to Benjamin G. Patton, dated the 29th day of August, 1895.

"Mr. Hostetter: We object to that being read in evidence, because Lizzie Rice, according to the testimony thus far adduced, died in 1903, and being a daughter of Phoebe Henderson and having died before Phoebe Henderson, nothing passed under the deed. Nothing could pass under the deed offered in evidence, and that's admitted by the counsel for the defendants. I think you practically state you didn't make any claims, is that right?

"Mr. Gene Pearson: Well, that's right."

The heirs of Lizzie Rice, nee Lizzie Henderson, recovered in the case and appellants do not challenge their recovery. We give this construction of the two trust instruments as given by counsel, because the two instruments are not before us for construction.

From an early day it has been held that a deed made by a minor is not void, but merely voidable. In the case of Singer Manufacturing Co. v. Lamb, 81 Mo. l. c. 221, this court through Martin, C., said:

"The deed of a minor is not void, but only voidable, after he reaches his majority. [Peterson v. Laik, 24 Mo. 541; Huth v. Marine Railway & Dock Co., 56 Mo. 202.] The right to disaffirm may be exercised by his heirs and representatives within the time permitted to him for doing the act. [Land & Loan Co. v. Bonner, 75 Ill. 315.] It requires no affirmative act to continue its validity, but only an absence of any disaffirming acts. It remains valid in all respects, like the deed of an adult, until it has been disaffirmed by the maker, after reachig his majority."

Lamm, J., in Shaffer v. Detie, 191 Mo. l. c. 377, 90 S.W. 131, said:

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