Tobin v. Spann

• Citation: 109 S.W. 534,85 Ark. 556
• Parties: TOBIN v. SPANN
• Decision Date: 09 March 1908
• Court: Arkansas Supreme Court

109 S.W. 534

85 Ark. 556

TOBIN v. SPANN

Supreme Court of Arkansas

March 9, 1908

Appeal from Mississippi Chancery Court; Edward D. Robertson Chancellor; reversed in part.

STATEMENT BY THE COURT.

The complaint alleges that A. W. Tobin died in 1898, leaving his widow together with the three plaintiffs and two older children; that he owned the land involved in the suit; that on the 27th day of May, 1899, plaintiffs, Charley Tobin and Mary Hayes, conveyed their interest in said land to defendant, Spann, for $ 132 per share that at the January term, 1900, the probate court of said county made an order authorizing and directing J. F. Morrow to sell the interest of Holland Tobin in said land; that on the 17th day of February, 1900, the said Morrow pretended to sell the interest of said Holland Tobin in said land to defendant Spann, for $ 132, and executed a deed to him on the 12th day of April, 1900; that Holland Tobin was twenty-one years old April II, 1905, Charles Tobin was twenty-five on the 10th day of March, 1905, and Mary Hayes was 23 years old on the 25th day of July, 1905, and, being minors at the time said deed was executed, were not responsible for their acts; that the sum of $ 132 was a shockingly inadequate consideration for the share of each plaintiff in said land at the time of the sale; that sixty acres of the same were then in cultivation and the defendant has received $ 1,800 in rents therefor, and has cut the timber therefrom.

The answer and amended answer deny the ages of the plaintiffs as set forth in the complaint; admit that Mary Hayes was married at the time she executed the deed; deny that $ 132 was a shockingly inadequate consideration for each share of said land; deny that sixteen acres were in cultivation; deny that defendant, had received $ 1,800 rents, and deny that he has cut the timber from said land; allege that Charley Tobin was twenty-one years of age, and Mary Hayes eighteen years of age at the time said deed was executed; that they asked defendant to purchase their land because it was mortgaged to H. E Fisher, and advised him that, unless he or some one else purchased the same, the mortgage would be foreclosed, and they would receive nothing; that said Charley Tobin and Mary Hayes stated positively to him that they were more than twenty-one and eighteen years of age, respectively, and produced witnesses who had known them from their birth to prove their age to the defendant; allege that the probate sale of Holland Tobin's interest was regular in all respects; that the land was duly appraised, and that he purchased it for an amount less than $ 100, after due notice of said sale had been given and no one else had bid, and, desiring to be fair in the matter, he voluntarily paid an amount in excess of what he was required to do, paying the sum of $ 132 therefor; allege that more than eighteen or twenty acres of said land were in cultivation, and that it was covered with logs and trees to such an extent that it was of but little value until he had expended a great deal of time and labor in putting it in condition; that the ancestors of plaintiffs had sold the merchantable timber on said land, and same was cut and removed by the purchaser; that said land was low and wet, and of but little value, and since his purchase of the same he has put about forty acres in cultivation; has cleared up twenty acres that were partially fit for Cultivation at the time of the purchase, but, owing to the fact that it is low and wet, he had never received any rent therefrom; that he has paid State, county, levee and ditch taxes thereon, and that a drainage canal has been constructed near the same which will enable said defendant to drain said land and make it valuable, and it is this fact that induced the plaintiffs to bring said suit to recover said land.

The facts are sufficiently referred to in the opinion.

Decree affirmed, cause reversed and remanded.

J. T. Coston, for appellants.

1. The testimony shows that the appellee did not believe that these plaintiffs were of age; but, if he was misled by the representations of Charles Tobin and Mary Hayes as to their ages, they are not estopped to disaffirm their conveyance executed during their minority. The law of equitable estoppel does not apply to a minor. 25 S.E. 979;4 N.W. 696; 31 Am. Rep. 678; 51 Am. Rep. 677; 17 N.E. 265; 68 N. W. II; 102 U.S. 313; 44 Ark. 296; 38 Ark. 281.

2. The probate sale of Holland Tobin's interest was void because the guardian did not give the special: bond required by statute for the protection of the fund arising from the sale. Kirby's Dig. §§ 3803, 3793; 4 Nev. 434; 58 Neb. 125; 5 Pick. 481; 28 Mich. 254; 61 Am. Dec. 231; 9 Pa. 351; 26 Miss. 648; 44 Miss. 591; 71 Ind. 407; 52 Ark, 341.

W. J. Lamb' for appellee.

1. Not only is it not shown that appellee believed that appellants were of legal age, but the contrary is shown. Moreover, the testimony upon which they depend to show that they were minors at the time is untrustworthy, unreliable and in material points unreasonable. But, if it be conceded that they were minors, they will not, in the light of their representations, be permitted to disaffirm their act and thus reap a reward for their own iniquitous conduct. 17 Ark. 608; 42 Ark. 330; 41 So. 497.

2. The plea, as to the Holland Tobin interest, that the guardian did not execute the special bond required by statute is without merit. No harm resulted. The full amount of the purchase money was paid over by appellee to the guardian, and by the latter to the ward. It was at most a mere irregularity, from which no loss occurred. 43 Ark. 171; 40 Ark. 393; 13 Ark, 177; 19 Ark. 499; 23 Ark. 121; 41 Ark. 267; 53 Ark. 213; 13 Ark. 507; 31 Ark. 74; 38 Ark. 78; 47 Ark. 413.

HART J. WOOD, J., dissents.

OPINION

HART, J., (after stating the facts).

The clear preponder-of the evidence in the case shows that Mary Hayes and Charles Tobin were minors at the time the deed sought to be disaffirmed was executed. There is testimony adduced tending to she that, at the date of the execution of the deed, their appearance indicated that they were of full age, and that they, together with their mother and older brother, represented themselves to appellee to be of full age. It is not contended now by appellee that this testimony meets or overcomes the evidence adduced by appellant tending to show that appellants were minors at the date of the execution of the deed in controversy, but it is now contended by appellee that such representations were false, and that by reason of such false representations they are estopped to disaffirm the deed.

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