Lessee of Tucker v. Moreland

IN error to the circuit court of the District of Columbia, in the county of Washington.

An action of ejectment was instituted in the circuit court, for the recovery of certain real estate in the city of Washington, claimed by the plaintiffs in error, under a deed executed by Richard N. Barry, on the first day of December 1831, to Richard Wallach.

The deed recited that Richard N. Barry and George Bing stood indebted to Tucker and Thompson, of the city of Washington, in the sum of $3,238, for which they had passed to them their joint and several promissory note, payable in six months; and to secure the payment of which note, with the interest, in twelve months, Richard N. Barry had agreed to execute the same. The deed, then, conveyed to Richard Wallach and his heirs, the property in controversy; in trust, to sell and dispose of the same, and after appropriating the proceeds of the sale to the payment of the debt and interest, and expenses of sale, to pay over the residue to the grantor. It also contained covenants on the part of Barry to keep the buildings on the premises ensured against loss by fire, and to transfer the policies to the trustee; and for further or other deeds of conveyance to the purchasers of the premises, in order to carry the purposes of the trust into complete effect.

The defendant derived title to the same property under a deed of indenture, executed by the same Richard N. Barry, on the 8th of February 1833, by which the premises in controversy and other lots of ground were conveyed to her, she being the mother of Richard N. Barry, 'in consideration of the sum of $1,138.61, which he owed to the said Eliza G. Moreland, for the recovery of which she had instituted a suit in the circuit court of the United States for the District of Columbia, and of other sums of money by her to him from time to time paid and advanced, a particular account of which had not been kept.'

On the trial of the cause, it was admitted that Barry was seized in fee of the premises, when be executed the deed to Richard Wallach; and that after the execution thereof, he continued in possession until the 8th of February 1833, when the deed to the defendant was made, and which deed was duly recorded.

Evidence was also given by the defendant, tending to prove that under the deed to her, she took possession of the premises, and continued to hold possession of the same up to the time of the trial of the cause.

The plaintiffs gave evidence to the jury to prove that Richard Wallach, the trustee mentioned in the before-mentioned deed of trust, duly advertised the sale of the lot and premises in the declaration mentioned, and sold the same to the plaintiffs on the 23d of February 1833; and made to them a deed for the same on the 7th day of March 1833.

The defendant gave evidence to prove that at the time of the sale made by Richard Wallach as aforesaid, the said defendant gave public notice of her title to the said lot and premises, and there publicly claimed the same as of her absolute right.

Upon which said evidence, so admitted and given, the counsel for the defendant prayed the court to instruct the jury; that if they believed the evidence so admitted and given as aforesaid to be true, that then they ought to find their verdict for the defendant: which instruction the court refused to give.

To this refusal the defendant excepted.

In addition to the evidence given as aforesaid, the defendant gave evidence to the jury to prove that at the time the said Richard Barry made and executed his deed as herein before mentioned to Richard Wallach, of the 1st of December 1831, he the said Richard Barry was an infant under the age of twenty-one years, and that at the time he made his deed to the defendant of the 8th of February 1833, before mentioned, he the said Richard Barry was of full age, that is to say, upwards of twenty-one years of age.

Whereupon the counsel for the defendant prayed the court to instruct the jury; that if, upon the whole evidence aforesaid, so given to the jury, they should believe the facts to be as stated as aforesaid; then the deed from the said Richard Wallach to the plaintiffs, as herein before mentioned, does not convey to the said plaintiffs any title which would enable them to sustain this action.

Which instruction the court gave, and to which the plaintiffs, by their counsel, excepted.

The plaintiff, further to maintain and prove the issue on his side, then gave in evidence, by competent witnesses, facts tending to prove that the said Richard N. Barry had attained the full age of twenty-one years on the fourteenth day of September 1831; and that in the month of November 1831, the said defendant, who was the mother of the said Richard, did assert and declare that said Richard was born on the 14th day of September 1810; and that she did assert to Dr. McWilliams, a competent and credible witness, who deposed to said facts, and who was the accoucher attending on her at the period of the birth of her said son, that such birth actually occurred on the said 14th of September 1810; and applied to said Dr. McWilliams to give a certificate and deposition that the said day was the true date of the said birth. The counsel of the plaintiffs requested the court to instruct the jury—

1. That if the jury shall believe, from the said evidence, that the said Richard N. Barry was of full age and above the age of twenty-one years at the time of the execution of said deed to said Wallach, or if the defendant shall have failed to satisfy the jury from the evidence that said Barry was, at the said date, an infant under twenty-one years, that then the plaintiff is entitled to recover.

2. Or if the jury shall believe, from the said evidence, that if said Richard was under age at the time of the execution of said deed, that he did, after his arrival at age, voluntarily and deliberately recognise the same as an actual conveyance of his right, or during a period of several months acquiesce in the same without objection; that then said deed cannot now be impeached on account of the minority of the grantor.

3. That the said beed from the said Richard N. Barry to the defendant, being made to her with full notice of said previous deed to said Wallach, and including other and valuable property; is not so inconsistent with said first deed as to amount to a disaffirmance of the same.

4. That, from the relative positions of the parties to said deed to defendant, at and previous to its execution, and from the circumstances attending it, the jury may infer that the same was fraudulent and void.

5. That if the lessors of plaintiff were induced, by the acts and declarations of defendant, to give a full consideration for said deed to Wallach, and to accept such deed as a full and only security for the debt, bona fide, due to them, and property bona fide advanced by them, and to believe that the said security was valid and effective; that then it is not competent for said defendant, in this action, to question or deny the title of said plaintiff under said deed; whether the said acts and declarations were made fraudulently, and for the purpose of practising deception; or whether said defendant from any cause wilfully misrepresented the truth.

Whereupon, the court gave the first of the said instructions so prayed as aforesaid, and refused to give the others.

To which refusal the council for the plaintiff excepted.

The court having refused the 2d, 3d, 4th, and 5th instructions prayed by the plaintiff, and the council, in opening his case to the jury, contending that the questions presented by the said instructions were open to the consideration of the jury, the counsel for the defendant thereupon prayed the court to instruct the jury, that if, from the evidence so as aforesaid given to the jury, and stated then, prayers for the said instructions, they should be of opinion that the said Richard was under the age of twenty-one years at the time he made his deed, as aforesaid to the said Richard Wallach, under whom the plaintiffs claim their title in this case; and that at the time he made his deed, as herein before mentioned to the defendant, he was of full age, that such last-mentioned deed was a disaffirmance of his preceding deed to him, the said Richard Wallach; and that, in such case, the jury ought to find their verdict for the defendant; and that the evidence upon which the 2d, 3d, 4th, and 5th instructions were prayed by the plaintiff as aforesaid, which evidence is set forth in the instructions so prayed, is not competent in law to authorize the jury to find a verdict for the plaintiff upon any of the grounds, or for any of the reasons set forth in the said prayers; or to authorize them to find a verdict for the plaintiff, if they should be of opinion that the said Richard Barry was under the age of twenty-one years, at the time he made his deed as aforesaid to the said Richard Wallach.

Which instruction the court gave, as prayed; and the counsel for the plaintiffs excepted thereto.

The plaintiffs prosecuted this writ of error.

The case was argued by Coxe for the plaintiff in error, and by Mr. Swann and Mr. Bradley for the defendant.

For the plaintiffs, it was contended that the circuit court erred in giving the instructions prayed by the defendant, and in refusing the instructions prayed by the plaintiff. That the deed of an infant is not void, but merely voidable. That there was competent and sufficient evidence before the jury from which they might infer that if the grantor, Richard N. Barry, was in fact an infant at the date of the deed to Richard Wallach, he had affirmed the deed after he came of age. If the grantor, Richard N. Barry, was at the date of the deed to Richard Wallach an infant, the defendant was guilty of a fraud; of which he could not avail himself to defeat the recovery of the plaintiffs in this action.

The circuit court erred in considering the acts of an infant, which are voidable by him on attaining full age, absolutely void in themselves. The acts of an infant are voidable, not void; cited 3 Burr. 1794; S.C.. 1 Sir Wm. Black. 575.

If an infant does an act which is voidable, he cannot recall it without repaying the consideration he received for the first conveyance. He can only reinstate himself, by reinstating the person from whom he claims what he had conveyed to him in all he had obtained from him. The disposition of court to restrain the power of infants within this rule, has been manifested by the later decisions of courts, in which such questions have been decided. The protection of infants which courts have given is a shield of defence, and is not to be used as a weapon to injure others; cited 7 Cowan. 179, 181; 15 Mass. 359; 13 Mass. 37; 2 Evan's Pothier, note 26.

But whatever may be the power of Barry over the deed executed to Mr. Wallach; the defendant cannot avail herself of the infancy of her son to sustain a title derived from him against one held under the deed of trust. She had excluded herself from denying the full age of her son, by asserting that it existed before he made the deed of trust, and procuring it to be admitted by the orphans' court; when Barry claimed, and, under the authority of that court, obtained the possession of his property, as being of full age.

The plaintiff had a right to submit these facts, and to have the benefit of them before the jury; and this was denied to him by the circuit court.

Mr. Bradley and Mr. Swann, for the defendant, denied that the case of Zouch v. Parsons, (3 Burr. 1794,) sustained the principle claimed under it by the plaintiffs' counsel. That case had no application to such a conveyance as was made to Mr. Wallach; which was a deed creating a trust, with covenants into which an infant cannot enter. The authority of the case of Zouch v. Parsons has been questioned and denied, (2 Preston on Conveyancing, 24.)

But if the deed to Mr. Wallach was only voidable, full evidence of its disaffirmance is given by the execution of the deed to the defendant; which contains a covenant of warranty, as well as a covenant of title. He was in possession when he executed this conveyance. To show how a deed given by an infant can be avoided when he attains full age, cited 14 John. Rep. 124. In all cases of affirmance of his acts while an infant, on his attaining full age, his affirmance must be express: cited 1 John. Cases 127. The cases show that a deed of bargain and sale given by an infant, may be disaffirmed by a deed of bargain and sale when he attains full age. In the case before the court, more has been done; a deed has been executed with covenants of warranty and title; the grantee has had possession even since the conveyance.

The charge of fraud could not be sustained. At the time of the application to the orphans' court, a mistake was made as to the age of Richard N. Barry, which was afterwards discovered. But the plaintiffs cannot avail themselves of those circumstances. The validity of the deed of trust depended on the age of the grantor; and this was the question properly before the court and jury. The deed to the defendant was given for a fair and valuable consideration, and it is a valid deed; if, when the prior deed was executed, the grantor was an infant. To this extent, and no more, were the instructions of the circuit court given; and they are sustained by the soundest principles of law.

Mr. Justice STORY delivered the opinion of the Court.