57 So. 460 | Ala. | 1912
“As a result of the voidable nature of an infant’s contracts, he has the right, upon arriving at his majority, to repudiate them; so, also, may he, when his minority ceases, ratify and confirm them; and this without any new considerations. — American Mortgage Co. v. Wright, 101 Ala. 658, 14 South. 399; Sharp v. Robertson, 76 Ala. 343; Shropshire v. Burns, 46 Ala. 108; West v. Penny, 16 Ala. 186; Thomasson v. Boyd, 13 Ala. 419; Jefford v. Ringgold, 6 Ala. 544. If the infant has, during minority, wasted or consumed the consideration which he received for his contract, he is not required, either at law or in equity, to refund it, or its equivalent in money, or to place the other party in statu quo. Some authorities require this; but we have adopted the rule, in accordance with reason and the great weight of authority, that to require restitution from the infant, as a condition to the avoidance of his contract, when he has, during his minority, used or consumed the thing received, so that he has not in his possession
“The right of an infant to avoid his contracts is intended, however, solely for his protection during that period when it may be supposed he is unable, from incapacity or inexperience, to fully protect himself in making agreements and was never designed to be used as a means of profit to accrue to him after he became of lawful age. So it is that when the infant, upon reaching his .majority, yet retains what he received by virtue of his contract, or any substantial portion thereof, or the proceeds thereof, the rule is quite different, and he may not repudiate or disaffirm his contract, except upon condition that he restores or abandons to the use of the other party that which remains in his possession of the consideration received. He will not be allowed, as an adult, to hold and enjoy the benefit of his contract, and then escape its burdens. This would turn his disability into- a weapon of dishonesty. If he comes into a court of equity to be relieved of his contract, he must tender or offer to return so much of the consideration as he actually or constructively retains, and has it in his power to return. — Eureka v. Edwards, 71 Ala. 257; Manning v. Johnson, 26 Ala. 446 [62 Am. Dec. 732]." —American Freehold Land Mortgage Co. v. Dykes, 111 Ala. 187, 188, 18 South. 294, 56 Am. St. Rep. 38.
The complainants, Lutera Brown and Lula Brown, attempt to avoid the offer to do equity by .the averment that they “have disposed of all the money received by
IVe cannot agree, hoAvever, with appellant’s contention that, even if the said parties disposed of all of the money during minority, they should offer to do equity by offering to let their part of the damages for waste be deducted from the purchase money paid them. This would not place them in statu quo, but Avould enable the respondent to defeat a restoration, at least in part, by denuding the land of the timber, and they would be entitled to Avhat they sold, and not merely to so much as was undisposed of by the respondent.
None of the complainants, except Lula and Lutera Brown, who Avere repudiating their deeds, can maintain this suit if the deeds from Mrs. Elvira Brown to her children Avere valid. The bill does not aver the residence of Mrs. BroAvn Avhen she executed said deeds; and if she was not at the time a resident of Alabama the failure of her husband to join in the deeds did not render them invalid.- — Hughes v. Rose, 163 Ala. 368, 50 South. 899; High v. Whitfield, 130 Ala. 444, 30 South. 449; section 4494 of the Code of 1907. The bill avers that the said husband was of sound mind and resided with
Since this case must be reversed, it is needless for us to pass on the remaining insistence, except to suggest that the decree, enjoining the respondent from cutting-timber in the future, and in making him account for all timber already cut, was rather broad. Bell owned the life estate of the father, John Brown, in all of the land, and as a life tenant he was entitled to the use of the wood and timber to the extent of committing no waste or selling same.
The decree of the chancery court is reversed, one is here rendered sustaining grounds 1 and 2 of respondent’s demurrer, and the cause is remanded.
Reversed, rendered, and remanded.