Spencer v. Lyman Falls Power Co., 460.

• Decision Date: 04 January 1938
• Docket Number: No. 460.,460.
• Citation: 196 A. 276
• Parties: SPENCER v. LYMAN FALLS POWER CO. et al.
• Court: Vermont Supreme Court

196 A. 276

SPENCER

v. LYMAN FALLS POWER CO. et al.

No. 460.

Supreme Court of Vermont. Essex.

Jan. 4, 1938.

Appeal in Chancery, Essex County; Walter H. Cleary, Chancellor.

Bill in equity by Clifford Stanley Spencer against the Lyman Falls Power Company and others to compel a reconveyance of certain realty deeded by the plaintiff while a minor. From a decree for defendants, plaintiff appeals, brings a petition for a new trial, and files a motion for an order remanding the cause to the chancellor.

Decree affirmed, and petition for new trial and motion for remand denied.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Harry B. Amey, of Island Pond, and Hubert S. Pierce, of Newport, for plaintiff. Porter, Witters & Longmoore, of St. Tohnsbury, for defendants.

MOULTON, Justice.

This is a bill in equity, brought to compel a reconveyance of certain real estate, deeded by the plaintiff while a minor. The facts were found by the chancellor, who entered a decree for the defendants. The plaintiff has appealed.

These facts appear in the findings: In November, 1918, the plaintiff and his sister were owners in fee of the land in question. The plaintiff was a minor, and did not attain his majority until April 5, 1919; his sister was of full age. They decided to sell, and approached the defendant MacLoon as a prospective purchaser. On November 30, 1918, MacLoon purchased the property, paying a fair price for it, and being guilty of no fraud or misrepresentation in the transaction. The deed was duly signed and executed by the plaintiff, his sister, and their mother, who was the plaintiff's guardian. MacLoon went into possession, and later conveyed a part of the property and the water rights pertaining thereto to the defendant Lyman Falls Power Company, and the rest to the defendant Hutchins. Some time later, the Lyman Falls Power Company conveyed its interest to the defendant, the Public Service Company of New Hampshire, which concern has, since 1930, made extensive improvements, at a cost of $93,000, at least $61,000 of which was expended before this suit was brought. Although he knew that ever since the date of the deed, the several defendants had been in open, notorious, visible, exclusive, and continuous possession, the plaintiff claimed no interest in the property until September 8, 1936, when he instituted this suit.

Other facts are found, which are clearly immaterial to the issue. We need not concern ourselves with the circumstances that the plaintiff's mother signed the deed, not as guardian, but as administratrix of her deceased husband's estate; that she falsely assured MacLoon that she was such administratrix and had authority to convey the land; that she never filed an account as guardian with the probate court of her appointment, and never obtained from that court a license to sell any part of the property; or that, in dividing the proceeds of the sale between her children, she gave the plaintiff considerably less than his share. As guardian she has never, so far as appears, objected to the transaction, or sought to disaffirm it. And so, too, it is immaterial that no decree of distribution has ever been made in the estate of the plaintiff's father, under whose will the plaintiff and his sister were the devisees of the land in question; because, upon the death of his father, the title at once became vested in the plaintiff, subject only to the lien of the executor to such an extent as might be required to pay the debts and administration expenses of the estate, Watkins v. Merrihew's Estate, 99 Vt. 294, 298, 131 A. 794, and cases cited; Hyde v. Barney, 17 Vt. 280, 283, 44 Am.Dec. 335; McCarty v. McCarty, 356 Ill. 559, 191 N.E. 68, 69, 94 A.L.R. 1137, and it appears from the findings, that the personal property, which was primarily chargeable with the debts, P.L. 2917, was sufficient to pay all claims against the estate. As to administration expenses, no facts are found, but since the testator died in 1910, it may be presumed from the lapse of time without, so far as appears, any objection on the part of the executor, that whatever lien he might have had has been satisfied. Austin v. Bailey, 37 Vt. 219, 223, 86 Am.Dec. 703; Hubbard v. Ricart, 3 Vt. 207, 208, 23 Am.Dec. 198; and see Alexander, Adm'r, v. Stewart, 50 Vt. 87, 89, 93. The matter stands, therefore, simply as a conveyance of real property by a minor, which he seeks to disaffirm after attaining his majority. That the plaintiff's vested interest was such as could be conveyed by deed cannot be doubted. Hyde v. Barney, 17 Vt. 280, 283, 44 Am.Dec. 335. Though a minor, his deed passed title. Hoffert v. Miller, 86 Ky. 572, 6 S.W. 447, 448; Irvine v. Irvine, 9 Wall. 617, 626, 19 L.Ed. 800, 803.

The deed of an infant is voidable, and may be ratified or disaffirmed by him after coming of full age, and so say all the authorities. But what acts or omissions may constitute a ratification, or within what time after reaching majority the disaffirmance must be made manifest, are questions upon which there is conflict in the decisions in different jurisdictions. See 3 Washburn Real Property, 3d Ed., p. 226. In some courts it has been held that mere delay, and silent acquiescence, by the grantor after coming of full age, unaccompanied by voluntary affirmative acts manifesting an intention to assent to the conveyance, for any length of time short of the period prescribed by the statute of limitations, affords no proof of ratification, and will not bar a disaffirmance. Boody v. McKenney, 23 Me. 517, 524; Davis v. Dudley, 70 Me. 236, 35 Am.Rep. 318, 319; Sims v. Everhardt, 102 U.S. 300, 312, 26 L.Ed. 87; Donovan v. Ward, 100 Mich. 601, 59 N.W. 254, 255; McMurray v. McMurray, 66 N.Y. 175, 181; O'Donohue v. Smith, 130 App.Div. 214, 114 N.Y.S. 536, 542; Mott v. Iossa, 119 N.J.Eq. 185, 181 A. 689, 693; Justice v. Justice, 170 Ky. 423, 186 S.W. 148, 149; Bozeman v. Browning, 31 Ark. 364, 376; Allen v. Poole, 54 Miss. 323, 332. "The mere recognition of the fact, that a conveyance has been made, is not, per se, proof of a confirmation of it." Story, J., in Lessee of Tucker v. Moreland, 10 Pet. 58, 75, 9 L.Ed. 345. But it is also held that a ratification may be inferred from the acts or omissions of the grantor, after becoming of age, taken in connection with the lapse of time, as, for instance, where he stands by and makes no objection while the grantee, with his knowledge, makes valuable improvements upon the property in reliance upon the title derived from the deed. Davis v. Dudley, supra, 70 Me. 236, 35 Am.Rep. 318, at page 320; Deichmann v. Deichmann, 49 Mo. 107; Allen v. Poole, supra; Coe v. Moon, 260 Ill. 76, 102 N.E. 1074, 1077; Dolph v. Hand, 156 Pa. 91, 27 A. 114, 116, 36 Am.St.Rep. 25; Irvine v. Irvine, supra.

But with us the rule has always been that where the contract of an infant is voidable only by him on his coming of age, he is bound by, and presumed to ratify it, if he does not, within a reasonable time after attaining full age, give notice of disaffirmance, or otherwise reject the result. "This principle," said the court in Bigelow v. Kinney, 3 Vt. 353, 359, 21 Am. Dec. 589, "is applicable of course to all grants or conveyances of real property to or from the infant. * * * A deed executed and delivered by an infant, conveying land, remains good and valid, until it is avoided by him, and as he alone has the power of avoiding the deed and rescinding the contract, he is bound, in reason and justice, after he comes of age, and is competent to exercise a discretion upon the subject, to make his election, and give notice of his intention. He ought not to be allowed to leave the grantee, upon whom the contract is binding, in a state of suspense and uncertainty; and unless he makes known his determination in a reasonable time, it is just that the contract should become absolute against him. At any rate, silence on his part, while the grantee, or any one under him, is claiming, holding, and occupying under the contract, is an acquiescence from which a confirmation of the contract may be inferred." And in Richardson v. Boright, 9 Vt. 368, 371: "In the case of every act of an infant, which is merely voidable, he must disaffirm it, on coming of full age, or he will be bound by it, and this must be done in a reasonable time." The principle has since been recognized in Ferguson v. Phoenix Mut. Life Ins. Co., 84 Vt. 350, 361, 79 A. 997, 35 L.RA.,N.S., 844; Hatch v. Hatch's Estate, 60 Vt. 160, 170, 171, 13 A. 791; and Forsyth v. Hastings, 27 Vt. 646, 650.

Other authorities embracing this view are Sims v. Bardoner, 86 Ind. 87, 91, 44 Am.Rep. 263; Kline v. Beebe, 6 Conn. 494, 506; Dolph v. Hand, supra, page 115 of 27 A.

What is a reasonable time depends upon the circumstances and is ordinarily, at least a question of fact for the trier of the cause. See Houran v. Preferred Acc. Ins. Co., Vt., 195 A. 253, decided at October, 1937, term, and cases cited. There is no specific finding of unreasonableness here, but, since every reasonable intendment is in support of the decree, we will presume that the chancellor drew such an inference, as he fairly might have done, in favor of the prevailing party. Labor v. Carpenter, 102 Vt. 418, 422, 148 A. 867; Kasuba v. Graves, Vt., 194 A. 455, 460. Surely it is no violent assumption to say that the chancellor might fairly have inferred that a delay of seventeen years and five months, after the plaintiff attained his majority, until the bringing of this suit, which may be treated as an attempt to disaffirm, McNaughton v. Granite City Auto Sales, 108 Vt. 130, 132, 183 A. 340, was unreasonable. A delay of nine years, after coming of age, was held to be unreasonable in Bigelow v. Kinney, supra.

Indeed, the decision need not rest upon this ground alone. The period of fifteen years, as prescribed by our statute of limitations, P.L. 1642, 1643, has been exceeded. Even those authorities that hold that mere...