Bell v. Burkhalter, 57 So. 460

Bell v. Burkhalter

57 So. 460 | Ala. | 1912

ANDERSON, J.

“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 *66or under- his control the consideration or its proceeds, would be to deprive him of that protection against his improvidence and incapacity which the law designed.. —Eurake v. Edwards, 71 Ala. 248 [46 Am. Rep. 314]; Craig v. Van Bebber, 100 Mo. 584 [13 S. W. 906] 18 Am. St. Rep. 569; Engelbert v. Troxell [40 Neb. 195] 58 N. W. 852 [26 L. R. A. 177, 42 Am. St. Rep. 665] and authorities there cited.

“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 *67them for their interest in said land, and are therefore unable to refund the same.” This averment is not sufficient to relieve them from the offer to do equity as they may have disposed of the proceeds of the sale, or a sub-„ stantial portion of same, after reaching the age of majority, and the law relieves them from offering to restore the consideration of the contract, or so much thereof as was disposed of during minority only. The bill avers that Lula Brown is over 21 years of age and that Lutera Brown was a married woman over 18 years of age; and section 4499 of the Code of 1907 relieves married women over the age of 18 years of the disabilities of minority. The bill was subject to grounds 1 and 2 of the respondent’s demurrer, which should have been sustained.

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 *68his wife, and did not give his consent to the sale, “as required by the statute of Alabama.” It does not aver that the wife resided in Alabama, and which was essential to make his consent necessary; but it does aver, by way of conclusion, that he did not give his consent, as required by the statute, thus averring, in effect, that she did reside in Alabama; else consent was not required by the statute. This manner of averment may be subject to an apt demurrer, but cannot be reached by the general demurrer for want of equity, as contended by appellant’s counsel, and which is the only point made against the bill by grounds 5 and 6 of the demurrer.

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.

All the Justices concur, except Dowdell, O. J., not sitting.

Reversed, rendered, and remanded.