3 Vt. 353 | Vt. | 1830
delivered the opinion of the Court. — That the deed of an infant, which takes effect by delivery, and is not upon the face of it a prejudice to him, is not void, but voidable only, is a doctrine well established by the authorities, and particularly by the case o f Zouch vs. Parsons, 3 Burr. 1794. The principle settled in that case has been confirmed by subsequent decisions in England, and has been generally, if not universally, re-cognised and adopted by the courts in this county. It is not only highly reasonable, but more beneficial to the infant, that it should be so ; for if the contract is void, it has no effect upon either party, and the infant himself can take no advantage of it. But if it be voidable only, he may either affirm or disaffirm it, after he arrives at full age, and is thus enabled to avail himself of the contract when it is beneficial, and to avoid it when it is prejudicial to his interest. In the present case, the plaintiff after he came to maturity had his election either to affirm or disaffirm the contract. If he disaffirmed it, he might have brought his action, and recovered hack the money he had advanced on the purchase. If he affirmed it, his only remedy was by an action on the promise of Williams to pay him the sum of ‡ 100 whenever he sold the land. As the execution of the deed of quit-claim, however, was a transaction subsequent in point of’time to the execution of the original deed and mortgage, and formed a distinct contract, the plaintiff might have elected to avoid the quit-claim deed only, leaving the original deed and mortgage in force.^But he could not affirm the deed which conveyed the land to him, and avoid the mortgage executed by him to secure the consideration money. The d^ed and mortgage were made at the same time, were one transaction, and though distinct instruments,formed one entire contract, which could not be affirmed in part, but must be affirmed or disaffirmed in whole. Nothing is clearer, than that a party cannot affirm an entire contract in part and avoid it in part; and to allow the plaintiff to avail himself of the deed conveying the land to him, and to avoid the mortgage given by him to secure the purchase money, would be no less repugnant to law than to the plainest dictates of justice.J^If the plaintiff, therefore, had elected, or was now at liberty, to avoid the deed of quit-claim, and take the benefit of the prior deed to himself, the mortgage given by him to secure the purchase money would be binding upon him ; and as the notes were given up in consideration of the quit-claim deed, and without payment, the debt would remain, and the plaintiff would have nothing but an equity of redemption in the land.
As an equity of redemption, after a breach of the condition of
Judgement reversed, and cause remanded to the’county court for a new trial.