Shipley ex rel. Next Friend v. Bunn

• Decision Date: 18 December 1894
• Citation: 28 S.W. 754,125 Mo. 445
• Parties: Shipley, by Next Friend, Appellant, v. Bunn
• Court: Missouri Supreme Court

28 S.W. 754

125 Mo. 445

Shipley, by Next Friend, Appellant, v. Bunn

Supreme Court of Missouri, Second Division

December 18, 1894

Appeal from Putnam Circuit Court. -- Hon. Andrew Ellison, Judge.

Affirmed.

Edward Higbee and C. C. Fogle for appellant.

The court erred in refusing the declarations prayed by appellant. Plaintiff, though an infant, had a right to enter and hold and take the profits during his minority. This would be true even if he had conveyed the fee, but he could not in that case conclusively avoid the conveyance till he is of age. Lawson on Contracts, sec. 147, p. 161; 10 Am. and Eng Encyclopedia of Law, 643 and note 1; 1 Parsons on Contracts [5 Ed.], 322; 1 Am. Lead. Cases [5 Ed., Hare & Wallace], 317 (257); Stafford v. Roof, 9 Cowen, 626; Bool v. Mix, 17 Wendell, 120; Mathewson v. Johnson, 1 Hoffman's Chan., 560; 1 Wash. R. P. [3 Ed.], (306) top p. 402; Zouch v. Parsons, 2 Burr. 1794; S. C., Ewell's Lead. Cases, Infancy, 3; Baker v. Kennett, 54 Mo. 88; Chandler v. Simmons, 97 Mass. 508; Harrod v. Myers, 76 Am. Dec. (Ark.) 409, top p. 411. (2) The court erred in giving defendant's declarations. Same authorities. (3) Manual delivery of the deed was not shown; this is essential. The fact of possession by the vendee would be evidence of delivery in the case of an adult, but in the case of an infant there should be strict proof of a personal delivery. The mother could not deliver it for her infant son. He could not make her his attorney; the appointment would be void, and, there being no proof of personal delivery by plaintiff, the deed is void. Stafford v. Roof, 9 Cowen, 626. (4) The case at bar differs from a conveyance of the fee. Plaintiff's interest ceases at his majority. Unless he can avoid the conveyance, or at least enter and enjoy the possession during minority, irreparable injury will ensue. This distinction is for the infant's benefit to enable him to avoid immediate consequences of his contracts, while land when the fee has been conveyed may be recovered at any time. 10 Am. and Eng. Encyclopedia of Law, 643, c; 1 Am. Lead. Cases [5 Ed.], (258) top p. 318; 1 Wash. Real. Prop. [3 Ed.], (306) top p. 402. (5) The distinction stated in the last point applies to a mortgage of real estate executed by a minor. He may plead infancy in avoidance of the deed, in a suit to foreclose. Schneider v. Staihr, 20 Mo. 269. (6) It is not necessary to specially allege a disaffirmance. The action of ejectment is sufficient. Craig v. VanBebber, 100 Mo. 584.

A. W. Mullins for respondents.

OPINION

Gantt, P. J.

This is an action of ejectment in statutory form for the possession of certain lands in Putnam county, Missouri. Ouster was laid as of January 1, 1887. Defendant Bunn answered he was in possession by his codefendant, and tenant, Pherigo, and asserted title in himself. Pherigo justified as tenant of Bunn, and Burnham filed a general denial. The facts are few and simple.

George W. Shipley owned the land in question, and occupied it as his homestead at the time of his death in the year 1885. He left surviving him his widow, Mrs. Eliza Shipley, and one minor child, Charles T. Shipley, the plaintiff. The land does not exceed $ 1,500 in value, and by a proceeding in the probate court was duly set off and assigned to the said widow and minor child.

On the nineteenth of February, 1890, Mrs. Eliza Shipley and the plaintiff sold, and, by warranty deed, conveyed the said homestead to defendant, Thomas J. Bunn, for the consideration of $ 55. Peter Greggers was duly appointed and qualified as the next friend of plaintiff, who is still a minor, under fifteen years of age. On December 23, 1890, plaintiff, by his next friend, began this action. In the circuit court judgment was awarded for defendants; plaintiff appeals.

On the trial, plaintiff asked, and the court refused, the following instructions:

"1. If the court finds from the evidence that the lands in controversy was the homestead of George W. Shipley, deceased; that at his death said G. W. Shipley resided thereon under a recorded deed, and was the head of a family; that said Shipley died on or about the day of , 1885, and left surviving him plaintiff, his minor son, and his widow, Eliza Shipley; that, under proceedings in the probate court of Putnam county, Missouri, said real estate was set off by commissioners to said widow, Eliza Shipley, during her lifetime, and to said Charles T. Shipley, during his minority, as their homestead; that said Charles T. Shipley is still under the age of twenty-one years, and said real estate of less value than $ 1,500, and that defendants were in possession of said lands as charged in the petition, and so continued to be, then the finding should be for plaintiff for the possession of said lands and the reasonable value of the rents and profits from the time this action was brought.

"2. Notwithstanding the deed read in evidence, executed by Charles T. Shipley and his mother to defendant Bunn, plaintiff is entitled during his minority to enter said premises and enjoy the rents and profits thereof during his minority, and may recover possession thereof for that purpose by an action of ejectment.

"3. On the evidence the finding should be for the plaintiff." And plaintiff duly excepted.

For defendants the court declared the law to be as follows:

"1. Although the court sitting as a jury may believe from the evidence that the premises in question constituted the homestead of George W. Shipley, now deceased, and that the plaintiff is his minor son and heir at law, and that said premises were set off to Eliza Shipley, widow of said George W. Shipley, deceased, and his said minor son, the plaintiff; if the court further believes and finds that the plaintiff and his mother, said Eliza Shipley, executed the deed in evidence, dated February 19, 1890, to the defendant, Thomas J. Bunn, the finding and judgment should be for the defendants.

"2. If the court finds from the evidence that the plaintiff is a minor, under the age of...