Bentley v. Greer

100 Ga. 35 | Ga. | 1896

Simmons, Chief Justice.

This was an action by certain brothers and sisters of M. • A. Bentley, and the children of a deceased sister, for the recovery of a tract of land to which they claimed title as • bis heirs at law. They alleged that the defendant was in possession, claiming title under a conveyance of the land, purporting tio- have been signed by the deceased daughter' above referred to, and by each 'of the brothers and sisters ■ suing, except William IT. Bentley, whose name purported to have been signed thereto by another person as his afctor- - ney in fact; and they 'had never signed it, n'or authorized. any one to sign in their behalf. The deed was dated August 26, 1856, and the suit was brought in 1895. There-was a verdict for William IT. Bentley for an undivided seventh interest in the premises, and damages, and in favor-of the defendant as to the other plaintiffs; and the latter - moved for a new trial, which was refused, and they ex- • cepted. The motion was upon the grounds that the verdict Was contrary to- law and the evidence; and upon the further ground that the court erred in refusing to charge-the jury, that if certain of the plaintiffs were minors at the time of the execution of the deed, it did not convey their - interests in the land described in it, unless they subse- • quently ratified'their former action in signing the deed; that mere acquiescence after becoming 'of age would not be-construed as a ratification of the act, unless the defendant or others under whom he claimed were in actual possession of the land claiming title under tire deed; and that if no one was in actual possession claiming under the deed, they would not be called upon to disaffirm it.

There was sufficient evidence to warrant a finding that the deed was executed upon the date stated therein, and by all of the persons 'whose names were signed to it, except the ene in whose favor the jury found; and there was evidence that the plaintiffs mentionted in the request -to charge, who. were minors at the time of signing, were at that time about sixteen and eighteen years of age respectively. The deed of an infant is not void, but merely voidable; and unless dis-affirmed within a reasonable time after majority, he will be "bound by it. Nathans v. Arkwright, 66 Ga. 179, and cases cited; Civil Code, §3604. Ror is he relieved from the duty of disaffirming it by the fact that no one is in possession of the land claiming under the deed. This duty is not dependent on the other party’s doing anything under the. deed. The maker has no right to assume that because the granltee or some other person holding under Mm does not go- upon the land, no claim is made under the deed. In the ease of Harris v. Cannon, 6 Ga. 382, adverse possession was dealt with only as hearing upon the mode of disaffirmance. The ■ question was whether a deed made in infancy would be . avoided by the making of a deed to a third person after the maker had attained majority; and ¡the court ruled that tMs would be a sufficient disaffirmance if the land conveyed were still in the maker’s possession, or vacant and uncul-tivated, though more might he required if the land were held adversely. It was there said that “in contracts voidable only by an infant on coming of age, he is hound to give notice of disaffirmance within a reasonable time; es^ peeially where the first grantee is in possession.” There is no intimation that the rule is otherwise if the first grantee is not in possession, and we have not been referred to any •authority which declares that it is. The only reason there could he for requiring possession on the part of the grantee or those claiming under him would be 'as a means of notice to the maker of the deed; hut possession is not the only mode of conveying notice. Besides, if a man knows that during Ms minority he conveyed land to another, there- is no reason why there should he any notice at all to Mm, in order to render Tiim chargeable with laches in failing to' disaffirm the: deed after becoming sni juris. It will not do to say that simply because a person was a minor when he made a deed hte¡ was so far ignorant of whait he did tba;t knowledge of it must come tlo him after his majority before th'e rule which, requires disaffirmance will apply. Of course, if the deed was signed when the person signing it was of a very tender-age, there could he no presumption that upon his arrival at majority he would know anything about it. It would, be manifestly unreasonable to hold a person presumptively chargeable with, knowledge of papers which were signed’ by him in early childhood. In such a case subsequent' knowledge at an ag.e when he was old enough to' understand what he had done, ought to he shown before the rule; requiring disaffirmance should he held applicable. But' where the person making the deed was a man or woman except in not having passed the legal limit of twemtynne years, there is no reason why he or she should not be held Chargeable with knowledge of it upon arrival at majority. As to the time in which such knowledge may be imputed to-a minor, we think the correct rule is stated in the head-note to 'this opinion. Certainly such knowledge may reasonably be imputed to a person sixteen or eighteen years of age, who is not shown to he below the average of intelligence of persons of the sama age. Erom what we have s'aid it follows that the court did not err in refusing to ch’arge as requested. So far as appears, this suit, brought nearly forty years after-the deed was executed, was the first step on the part of these-plaintiffs to disaffirm what they had done. As to what is; a. reasonable time for disaffirmance, sete Nathans v. Arkwright, supra; Candler v. Clarke, 90 Ga. 557.

Judgment affirmed.