Ridgeway v. Herbert

• Citation: 51 S.W. 1040,150 Mo. 606
• Parties: RIDGEWAY v. HERBERT et al.
• Decision Date: 14 June 1899
• Court: United States State Supreme Court of Missouri

51 S.W. 1040

150 Mo. 606

RIDGEWAY v. HERBERT et al.

Supreme Court of Missouri, Division No. 1.

June 14, 1899.

INFANTS — DEEDS — DISAFFIRMANCE — EJECTMENT — ANSWER — EVIDENCE — PROVINCE OF COURT — INJUNCTION — FRAUD — HARMLESS ERROR.

1. Where a minor supposing himself of age conveyed property, and after coming of age he sued to set aside the transfer for fraud, a statement afterwards made by him to the transferee that he was satisfied with the transaction was not a ratification of his act as a minor, unless he had learned that he was a minor when he executed the transfer.

2. A minor may avoid his deed when he comes of age, though he represented himself of age when he made the deed, and thereby misled the other party to his disadvantage.

3. Where a person, on coming of age, sued to set aside a previous conveyance for fraud, the fact that he alleged in his petition that he was of age when he executed the deed does not estop him from afterwards disaffirming the deed, because he was a minor when he executed it.

4. If a minor wastes the consideration received for a deed, he may disaffirm the deed, on coming of age, without restoring the consideration.

5. It is a sufficient disaffirmance of a conveyance executed during minority for the grantor to give a warranty deed of the same property to another grantee on coming of age.

6. It is a question for the court whether a deed executed by a person on coming of age was a disaffirmance of a deed of the same property given to another grantee during minority.

7. An allegation in an answer in ejectment that the title on which plaintiff sues was fully litigated and adjudged invalid in a suit wherein defendant's grantors were plaintiffs and plaintiff was defendant will not be stricken out, though it is not a defense, since it may be material on the question of defendant's right to have further litigation enjoined.

8. It was harmless error to admit secondary evidence without laying a predicate therefor, where the party giving it immediately afterwards offered to lay the predicate, and withdrew his offer only on the opposite party's objection that it was immaterial, since the secondary evidence was already in.

9. Where a grantor was young and dissipated, and a spendthrift, and his character was known to the grantee, a mature business man, it was fraudulent for the latter to obtain conveyances from the former for an inadequate consideration in cash which he knew would be squandered, though at the time of the transfer the grantor was sober.

10. A successful defendant in ejectment is not entitled to a judgment enjoining plaintiff from further suing on the same title, where the case is the first suit plaintiff has brought on that title.

Appeal from circuit court, Grundy county; P. C. Stepp, Judge.

Ejectment by D. D. Ridgeway against W. V. Herbert and others. From a judgment for defendants, plaintiff appeals. Reversed, with directions.

S. C. Price, for appellant. Hall & Hall, for respondents.

VALLIANT, J.

This is an action of ejectment to recover 60 acres of land in Grundy county. The petition is in the usual form. The answer admits that defendants are in possession, and sets up a state of facts showing that plaintiff is entitled to recover, unless the leases and deed under which he claims are rendered invalid by reason of the further facts pleaded in the answer, which are substantially that on December 2, 1891, George W. Moberly, who is the common source of title, was the owner and in possession of the land, and on that day he executed a lease for a term of five years from March 1, 1892, to one Martin, at the yearly rental of $100, and on December 31, 1891, Moberly, for the consideration of $25, assigned his interest as landlord in the lease to the plaintiff and J. D. Ridgeway, the latter afterwards assigning his interest to the plaintiff; that afterwards, on February 1, 1892, Moberly executed a lease to plaintiff for five years from March 1, 1897, for a total rental of $50, and three days later executed a deed to the plaintiff for the land for $50; that, at the time he made those leases and the deed, Moberly was under 21 years of age; that after he came of age he disaffirmed those transactions, and made a deed conveying the land to Williams and Linney, under whom, by mesne conveyances, defendants hold title; that Moberly, while yet a minor, squandered the money plaintiff paid him for the lease and the deed, and did not have it to restore to plaintiff, but W. B. Linney, as attorney for Moberly, tendered it to plaintiff, but he refused it; that, after they purchased from Moberly, Williams and Linney sued this plaintiff in ejectment for the land, and recovered it in a judgment rendered in 1895, and after that they sold it to defendant Herbert, and defendants now hold under that title. The answer then proceeds in the nature of a cross bill in equity, and states separately three causes calling for equitable relief. The first is leveled at the Martin lease, and charges not only that Moberly was a minor when he made it, but that, in the matter of obtaining the assignment of the landlord's interest in it from Moberly, the plaintiff, who is a shrewd business man, took advantage of the inexperience of Moberly, plied him with whisky until he was drunk, falsely represented that the lease, which was worth $500, was of no value, and by that means obtained the assignment for $25. Then follows a reiteration of the statements in reference to the making of the deed to Williams and Linney by Moberly after he came of age, disaffirmance of the transactions with plaintiff, his squandering of the money received while a minor, the tender of the amount by Williams and Linney, their recovery of the land by suit against plaintiff, and sale of the same under which defendants hold as above stated, and concludes with the charge that the lease, being of record, is a cloud on defendants' title, and prayer that the cloud be removed and plaintiff enjoined from suing and asserting title under it. The remaining two paragraphs of the cross bill are substantial repetitions of the one just summarized, except that one of them is aimed at the second lease, and the other at the deed made by Moberly to plaintiff, and praying for their cancellation as clouds on defendants' title, and for injunction against them. The reply admits the execution of the leases and deed as alleged in the answer; denies all the allegations as to fraud or improper dealing on the part of plaintiff; denies that Moberly was a minor when he executed the same; but avers that, if he was a minor, he was within a few months of being of age, that plaintiff dealt with him fairly and in good faith, believing him to be of age, he holding himself out as such, and that he and defendants claiming under him are estopped to plead his infancy. Further, that on March 18, 1893, when he was of age, Moberly brought suit against plaintiff, seeking to annul the leases and deed on the alleged ground that they were obtained by fraud, and stating in his petition that he was of age when he executed them, which suit resulted in a judgment of dismissal at Moberly's cost; that thereby he ratified and affirmed his act, and defendants are estopped to question it. The court submitted the issues to a jury, who returned a verdict for defendants. After motions for new trial and in arrest were overruled, the cause is here on plaintiff's appeal.

Under the pleadings, the issues were divisible into two classes, — the one constituting an action at law, the other a suit in equity. The issues affecting the validity of the plaintiff's leases and deed on account of the alleged minority of Moberly, and his disaffirmance of the same after coming of age, were issues in an action at law triable by a jury, and those affecting the validity of the instruments on account of the alleged fraud were issues in an equity suit, and for the chancellor to try. Where an answer in a lawsuit admits the plaintiff's cause of action, and sets up purely an equitable defense, it converts the whole case into a suit in equity, triable by the chancellor. Hodges v. Black, 8 Mo. App. 389; Allen v. Logan, 96 Mo. 591, 10 S. W. 149; McCollum v. Boughton, 132 Mo. 601, 30 S. W. 1028, 33 S. W. 476, and 34 S. W. 480. A plaintiff is not thereby deprived of his right of trial by jury, because the defendant by his answer concedes the plaintiff's right to recover, unless the equity defense prevails. But in this case the defendants plead two affirmative defenses, — the one cognizable at law, the other in equity, although they have mingled both in the same paragraphs; but no objection to the answer on that account was made, and, as the facts can be distinguished, we will do so. If the court had seen fit to try first the issues presented in those portions of the answer which are in the nature of an equitable cross bill, and had found that the plaintiff's leases and deed were obtained by fraud, the finding would have covered the whole case, and there would have been no propriety in trying the other issues. But, if the court had found for the plaintiff on the cross bill, it would have left the issues relating to Moberly's minority and his disaffirmance or ratification live questions for trial. It was also in the discretion of the trial court to have singled out the issues at law, and have tried them first with the aid of a jury. In that event, if the verdict had been for the...