Strain v. Wright

• Decision Date: 30 November 1849
• Docket Number: No. 94.,94.
• Citation: 7 Ga. 568
• Parties: William L. Strain, adm'r of Jacob T. Wright, plaintiff in error. vs. Robert T. Wright, defendant.
• Court: Georgia Supreme Court

7 Ga. 568

William L. Strain, adm'r of Jacob T. Wright, plaintiff in error. vs. Robert T. Wright, defendant.

No. 94.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1849.

In Equity, in Greene Superior Court. Tried before Judge Merriwether, September Term, 1849.

Robert T. Wright purchased a negro of Jacob T. Wright, paid a portion of the purchase money, and gave his promissory note for the balance. Subsequently, suit was brought upon this note, and to this suit a plea of infancy, at the time of the making of the contract, was filed. On the trial, proof having been introduced to sustain the plea, the action was dismissed.

The plaintiff in error then filed a bill, alleging the foregoing facts, and insisting that the defendant had, by his plea and proof, disaffirmed and annulled his contract, and prayed that the negro might be delivered up to complainant, on his re-paying the amount of the purchase money paid, or else that the negro might be sold, and after paying the balance due of the purchase money, the residue to be paid to Robert T. Wright.

Robert T. Wright, by his answer, insisted that he hod paid the amount of the purchase money of the negro, and pleaded the Statute of Limitations.

On the trial, the complainant introduced evidence in support of his case, and the defendant in support of his plea of payment.

Counsel for complainant requested the Court to charges the Jury—

1st. That if the defendant, upon arriving at full age, and being sued upon the note given in part consideration of the purchase of said slave, pleaded the plea of infancy to said note, and introduced evidence, on the trial, in support of the plea, it was a disaffirmance of the contract for the sale and purchase of said negro.

2d. That upon the disaffirmance of the contract, the property revested in the original owner.

3d. That if the contract was disaffirmed by the defendant, after arriving at full age, and a portion of the consideration money had been paid by the defendant, it was competent for the Jury to decree a sale of the negro, and that the proceeds be applied, first, to the re-payment to the defendant of the amount paid by him, and the balance be paid to the complainant.

The Court declined so to charge, but, on the contrary, instructed the Jury, among other things, "That the plea of infancy to the suit on the note, and the evidence produced in support of the plea, was not a disaffirmance of the contract; that the complainant's bill was in the nature of an action of trover, and sounded in tort, and could not be sustained; that it was an attempt on the part of the complainant to charge the defendant with a tort, when the evidence showed that the cause of action, whatever it might be, arose from contract."

To which charge of the Court, and refusal to charge, the complainant excepted.

Cone, for plaintiff in error.

1st. The plea of infancy to the action at law, and the evidence introduced by the defendant in support of the plea, was a disaffirmance of the contract for the sale and. purchase of the negro, the property in controversy-. 15 Mass. 359, 361. 9 Metcalf, 519. 6 Ala. 544, 548. 1 New Hampshire, 73. 7 Cowen, 179. 6 New Hamp. 339. 2 Kent, 239, 240. Reeve's Dom. Rel. 243, 249. 5 Serg. ft Rawle, 309, 313. 1 Rol. 731. 2 Coke, 320. 2 Bul. 69. Godb. 365. 3 Comyn's Dig. 550. Co. Lift, 2, b. 10 Jac. 320. Godb. 120. 2 Vent. 203. Vern. 132. 2 Vern. 225. 1 Roll\'s Ab\'gt, "Enfants."

2d. Upon the disaffirmance of the contract, the property revested in the original owner, or, he being dead, in his personal representative. 6 Ala. Rep. 518. 15 Mass. 359, 361. 1 New Hamp. 73, 75: 8 Taunton, 39. Reeve's Dom. Relat. 213, 219. 5 Serg. & Rawle, 309, 313. 7 Cowen, 182, 183. 6 New Hamp. 339. 2 Kent's Com. 239, 210.

3d. He who avoids an executed contract on the ground of infancy, after arrival at full age, must refund the consideration received by him. 1 New Hamp. 73. 6 lb. 330. 5 Smede & Marsh. 222. 5 Serg. & Rawle, 309. 2 Kent's Com. 240. 5 Humph. 70. 7 Cowen, 179. 15 Mass. 359.

W. C. Dawson, for defendant in error.

By the Court.— Warner, J., delivering the opinion.

Two grounds of error are alleged to the judgment of the Court below, in this case. First, in refusing to give to the Jury the instructions asked by the counsel for the complainant. Second, in giving to the Jury the instructions as set forth in the record before us.

It appears that the defendant had purchased from the complainant's intestate a negro, for which he paid a part of the purchase money, and executed his note for the balance. At the time this contract was executed, the defendant was an infant, who took the negro into his possession. When sued upon the note given for the balance of the purchase money for the negro, after attaining full age, he filed the plea of infancy to the action upon the note, and at the trial, sustained his plea by proof, whereupon the plaintiff in that action dismissed it.

The complainant then filed his bill, setting forth the facts of the ease, and prayed for a decree to have the negro sold, and out of the proceeds of such sale, to pay the defendant the amount paid by him to the complainant's intestate, and the balance thereof to be paid to the complainant.

The instructions asked by the complainant's counsel assert the proposition, that the contract for the sale of the negro was disaffirmed by the defendant, by his plea of infancy to the action onthe note, and that the title to the negro vested in the original, vendor, or his legal representative, and that it was competent for a Court of Equity to decree a sale of the negro, so as to adjust the equitable interests of the respective parties to the contract,, according to the facts of this particular case. The instructions requested were, in our judgment, correct in point of law, and ought to have been given.

The contracts of infants are not void, but voidable at their election, when they arrive at twenty-one years of age. 2 Kent's Com. 235. Roof vs. Stafford, 7 Cowen's Rep. 179. By his plea of infancy to the action brought upon the note given in part payment for the negro, the defendant disarmed the contract for the sale of him.

An obligation or other deed of an infant, shall be avoided by plea of within age. 3 Comyn's Dig. 550, letter c, 5. The plea of infancy was his own voluntary act, and manifested his intention to repudiate the contract, and he is therefore bound by it. The defendant will not be permitted to disaffirm the contract, when sued for the purchase money by the vendor, and when the latter seeks to recover the property, in consequence of such disaffirmance, to refuse to give it up, and then insist upon such refusal as evidence of an affirmance of the contract, as was contended by the counsel for the defendant in error. When the defendant filed his plea of infancy to the contract, he made his election to disaffirm it, and he is bound by such election.

It has been insisted on the argument, that when an infant has received property by virtue of an executed contract made with an adult, that when he arrives of age and disafirms the contract, by his plea of infancy to the note given for the property so received, the adult cannot recover from the infant, either the purchase money for the property sold to him, or the property. Upon what legal principle this doctrine can be supported, we are unable to determine; certainly upon no just principle.

The infant, in this case, derived his title to the negro by virtue of the contract made with the complainant's intestate. When of age he disaffirms the contract, and it is cancelled for his benefit, The contract of sale being rescinded at the instance of the infant, what becomes of his title to the property derived from the vendor? According to legal rules and common sense, it would seem that the title to the property would revest in the vendor;and yet the authorities to be found in the books upon this question are not as harmonious as might be expected. We, however, adopt the rule as stated by Chancellor Kent. If the infant avoids an executed contract, when he comes of age, on the ground of infancy, he must restore the consideration which he had received. The privilege of infancy is to be used as a shield, and not as a sword. He cannot have the benefit of the contract on one side, without returning the equivalent on the other. 2 Kent\'s Com. 240. The cases of Badger vs. Phinney, (15 Mass. Pep. 359,) Roberts vs. Wiggins, (1 New Hamp. Pep. 73,) and Roof vs. Stafford, (7 Cowen\'s Rep. 179,) are cited in support of this...