Singer Mfg. Co. v. Lamb

• Decision Date: 31 October 1883
• Citation: 81 Mo. 221
• Parties: THE SINGER MANUFACTURING COMPANY v. LAMB, Appellant.
• Court: Missouri Supreme Court

81 Mo. 221

THE SINGER MANUFACTURING COMPANY

v.LAMB, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Barton Circuit Court.--HON. C. G. BURTON, Judge.

AFFIRMED.

Phelps & Brown for appellant.

The rule is well settled that the deed of a minor passes the estate, subject, however, to be divested by avoiding the conveyance on the infant attaining his majority. Baker v. Bennett, 54 Mo. 82, and cases there cited. On the question of disaffirmance of the mortgage executed by an infant, the execution by the infant after attaining majority, of a deed of the same land, to a person other than the mortgagee, was held a sufficient disaffirmance. Dixon v. Merritt, 21 Minn. 196. A mortgage made during infancy may be affirmed by a conveyance after majority to a third person, subject to the mortgage. But such a deed which does not refer to the mortgage is a disaffirmance. Allen v. Poole, 54 Miss. 323. When a minor conveys certain land during his minority, and after attaining his majority conveys the same land to a third person, the second deed is a disaffirmance of the first. Yonse v. Norcum, 12 Mo. 550, (marg. p.); Jackson v. Carpenter, 11 Johns. (N. Y.) 539; Jackson v. Burchin 14 Johns. (N. Y.) 123. The mortgage in question not being absolutely void, but only voidable, required some act to be done by the infant, on attaining his majority, for the purpose of voiding the mortgage or render it inoperative. The act of voidance is only required to be made in as solemn and notorious a manner as the act sought to be disaffirmed was performed. Chenault's deed to the defendant Lamb was equally as solemn and notorious as plaintiff's mortgage, and to all intents and purposes sufficient to disaffirm the latter.

Robinson, Harkless & Bennett for respondent.

1. A mortgage deed, executed while he is a minor, is not disaffirmed or avoided by his subsequently executing a quit-claim deed after he arrives of age. Leitendorfer v. Hempstead, 18 Mo. 269. 2. The quit-claim deed has the effect to convey such title as the minor had, to-wit: An equity of redemption. Mann v. Best, 62 Mo. 496. 3. To render a subsequent deed an act of dissent to the prior conveyance of an infant, it must be inconsistent therewith, so that both cannot properly stand together. Leitendorfer v. Hempstead, 18 Mo. 269; Illinois Land Co. v. Beem, 2 Ill. App. 390; Eagle Fire Co. v. Lent, 6 Paige 638. 4. But however this may be, the evidence shows that the minor, on April 2nd, 1880, after he arrived of age, and after he had executed his quit-claim deed to defendant, executed a deed of affirmance to plaintiff. Hence it clearly appears that he never intended to disaffirm the mortgage, and the act of the infant being voidable and not void, it is at his election to affirm or disaffirm after arriving at age. Baker v. Kennett, 54 Mo. 82. 5. The warranty deed made by Chenault, the infant, to Leroy Moore, under whom defendant claims, was made while he was still a minor, and hence had no effect; the matter was open for his affirmance after arriving of age, and he has affirmed the mortgage. Baker v. Kennett, 54 Mo. 82. 6. It is conceded, and if not the evidence shows, that the debt for which Chenault, the minor, made the mortgage to plaintiff to secure, was justly due, and that the mortgage was for valuable consideration. How can the minor, or any one claiming under him, recover the land without returning the fruits of the contract? This would defeat defendant, even if the minor had disaffirmed the contract. Maupin v. Grady, 71 Mo. 278; Baker v. Kennett, 54 Mo. 82; Betts v. Carroll, 6 Mo. App. 518; Kerr v. Bell, 44 Mo. 120. 7. Authorities are cited by appellant to maintain the proposition that a second conveyance by an infant, after he arrives of age, is sufficient of itself to disaffirm his deed made while an infant; but even if such was the law, it is not the question presented. All decisions which so hold, do so upon the principle that the two are inconsistent. But where there is an interest upon which the second conveyance can operate, as in this case, there is no such rule, and should not be.

MARTIN, C.

This was a suit to foreclose a mortgage conveying 640 acres of land, and was instituted against the mortgageor and all other persons interested in the land by conveyance under him. The controversy which comes before us, relates to only eighty acres of the mortgaged land, claimed by Isaac N. Lamb, who is the appellant from the decree of foreclosure as to this parcel. The pleadings were sufficient to embrace the issues contained in the evidence, and need not be recited.

On the 14th day of February, 1876, W. W. Chenault executed and delivered to the plaintiff a mortgage on the whole 640 acres. At this time he was a minor, under the age of twenty-one years. On the 26th day of July, 1876, while he was still a minor, he executed and delivered to one Leroy Moore, a warranty deed to eighty acres of the mortgaged tract for a consideration of $350. On the 17th day of November, 1876, said Moore, by warranty deed, conveyed the same parcel of eighty acres to Isaac N. Lamb, defendant, for a consideration of $400. On the 25th day March, 1879, and after the mortgageor had attained his majority, he executed and delivered to the defendant, Lamb, a quit-claim deed for the same parcel of eighty acres. On the 2nd day of April, 1880, the mortgageor executed and delivered to plaintiff a deed affirming the mortgage deed as to all the land conveyed by it.

The deed made by the mortgageor to Leroy Moore, while he was still a minor, could not constitute a disaffirmance of the mortgage deed previously made during his minority. If his quit-claim deed to the defendant, Lamb, after he had reached his majority, was effective in disaffirming the mortgage deed, as to the land in controversy, then the subsequent deed of affirmance of the mortgage deed, as to the same land, could have no effect in giving it to the plaintiff or preserving it in its security. Thus the sole question necessary for us to consider is, whether the quitclaim deed operated as a disaffirmance of the mortgage deed as to this parcel of land. This is the only point presented by counsel on both sides.

The deed of a minor is not void, but only voidable, after he reaches his majority. Peterson v. Laik, 24 Mo. 541; Huth v. Corondelet, etc., 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. Ill., etc., 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...