119 Ind. 187 | Ind. | 1889
This is an appeal by Emily A. Buchanan from a judgment of the Hendricks Circuit Court, rendered in an action brought by her against William S. Hubbard to recover the possession of certain real estate which the plaintiff alleges she conveyed to a remote grantor of the defendant, while she was an infant, and which conveyance she avers she afterwards disaffirmed.
The material facts upon which the judgment is predicated, as they appear in the special finding of the court, are the following: On the 3d day of October, 1867, the plaintiff, being the owner of the land in controversy, agreed, through the agency of her husband, to exchange it with one Pennington for certain lands in the State of Kansas, she to receive in addition four hundred dollars in money. At the time the agreement and conveyance were made, the plaintiff was the wife of John Buchanan, and lacked about ten days of being twenty-one years old. Pennington, without the knowledge or consent of the plaintiff, executed a deed conveying the Kansas land to her husband, but before she delivered the conveyance for the Hendricks county land, in which her husband joined, she was apprised of the fact that the latter had been named as grantee in the conveyance from Pennington. The four hundred dollars were paid to the plaintiff’s husband for her benefit by Pennington, who had no knowledge that she was not twenty-one years of age. Buchanan and his wife took possession of the Kansas land on the 15th day of October, 1867, and continued in possession until they sold it, in 1885. The Hendricks county land, through various mesne conveyances, came to the possession of Hubbard in 1880. In 1882, the plaintiff and her husband, being still in the possession of the land obtained from Pennington, caused a written notice to be served on the defendant Hubbard, to the effect that she disaffirmed the conveyance to Pennington, on the ground that she was an infant at the date of its execution. Subsequently she instituted this suit to recover the land, and after the commencement of the action
The plaintiff having paid the consideration for the Kansas land, her husband, who took the title in his name without her knowledge or consent, took it in trust for the benefit of his wife. Mitchell v. Colglazier, 106 Ind. 464, and cases cited.
It is insisted, however, that because the transaction involved a tract of land in the State of Kansas, the law of that State alone can be looked to in order to determine whether or not a trust resulted to the plaintiff, notwithstanding the conveyance to her husband in the manner found by the court. Hence it is argued, since the law of Kansas was not pleaded and proved, and because that State was territorially carved out of what is known as the “ Louisiana purchase,” neither the law of Indiana nor the common law can be applied to the case.
It is sufficient to say that the laws of a State to whose courts a party appeals for redress, furnish in all cases prima facie the rule of decision, and if either party claims the benefit of a different rule, since the courts are presumed to be acquainted only with their own laws, he who asserts the existence of a different rule, as applicable to his case, must aver and prove it, like other facts of which the courts do not take judicial notice. Cincinnati, etc., R. R. Co. v. McMullen, 117 Ind. 439; St. Louis, etc., R. W. Co. v. Weaver, 35 Kan. 412. As was said in Crake v. Crake, 18 Ind. 156: “ Where a right is sought to xbe enforced in one State in relation to a subject-matter existing in a foreign State, and no foreign law is proved, and no common law rule ever
In respect to general principles, the common law is presumed to be in force in most of the States, subject to such modifications as may have resulted from legislation or judicial construction. If these latter are not shown, the court .applies the principles of the common law, as those principles are interpreted in the State where the trial is proceeding. Rape v. Heaton, 9 Wis. 328; Legg v. Legg, 8 Mass. 99.
It is true that as to those States in which there were established civil governments, or systems of domestic law, prior to their becoming territories or States of the Union, the presumption that the common law prevails is not indulged, and in such a case, in the absence of anything to the contrary being shown, the court will presume that the foreign law is the same as that which prevails here. The State of Kansas, although territorially a part of the Louisiana purchase, is not one of the States in which the civil law ever prevailed, and the principle sought to be interposed is, therefore, not applicable.
It is a universal rule, governing courts of chancery, in the absence of a modifying statute, that a trust results in favor of a purchaser who advances the purchase-money in the character of a purchaser and takes the title to real estate in the name of a third person, unless the relationship of the parties was such as to give rise to the pr.esumption that the purchase was intended as a gift or advancement. 1 Lewin Trusts, 163. Accordingly, Lord Chief Baron Eyre, in Dyer v. Dyer, 2 Cox Ch. 91, declared that “ The clear result of all the cases, without a single exception, is, that the trust of a legal estate * * * results to the man who advances the purchase-money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common
Where a married woman pays the purchase-price of real estate and takes the title in the name of her husband, the common law raises no presumption that it was so taken as a gift or advancement to the latter. The presumption in such a case is, that the husband took the title as agent or trustee, and that he was to hold the land in trust for his wife, unless such presumption is rebutted by lapse of time, or by the facts and circumstances surrounding the transaction. Armacost v. Lindley, 116 Ind. 295; Hileman v. Hileman, 85 Ind. 1; Wales v. Newbould, 9 Mich. 45; Mellinger v. Bausman, 45 Pa. St. 522; McNally v. Weld, 30 Minn. 209.
Whether, therefore, we apply the rules of the common law or assume that the common law has been modified by statute in the State of Kansas, since, in the absence of any proof showing what modifications had been made, we assume that the common law as modified and interpreted in that State is like our own, the conclusion follows that the plaintiff was-
That the deed of an infant is only voidable, and not void, is now the accepted rule of decision. And it is also firmly settled that a married woman may, any time during coverture, disaffirm a deed made by her during infancy. Buchanan v. Hubbard, 96 Ind. 1. But there is some diversity of opinion as to what acts, after reaching majority, will amount to an avoidance of the deed. It is sometimes asserted that the original contract must be vacated by some act equally solemn with the deed itself; while other authorities declare that any act distinctly and unequivocally manifesting an intention to disaffirm the deed, or dissent from the original engagement or transaction, is a sufficient avoidance. Scranton v. Stewart, 52 Ind. 68; Losey v. Bond, 94 Ind. 67;
At law an infant is not bound, as a condition precedent to the avoidance of his conveyance on attaining his majority, to restore the consideration received for property conveyed or transferred, provided the consideration has been wasted or lost during minority, or has become absorbed in other property. Mustard v. Wohlford, 15 Gratt. 329 (Ewell Lead. Cases, 142).
The effect of avoiding the deed is to entitle the infant, who has attained his majority, to recover his property ; while, on the other hand, so much of the specific consideration as remains in his hands may be reclaimed by the party to whom the conveyance had been made. Carpenter v. Carpenter, 45 Ind. 142; Dill v. Bowen, 54 Ind. 204.
The true rule seems to be, where the specific property received as a consideration, whatever it be, exists and remains in the hands of the infant at the time of disaffirmance, and is capable of return, the latter is bound to give it up. If, after arriving at age, he disposes of the property received, or asserts title to it as his own, he thereby confirms the contract, and can not recover that which he conveyed.
An infant, after attaining majority, can not disaffirm, so far as avoiding his own deed, and yet affirm by holding on to the specific consideration received, then remaining in his possession, and capable of restoration. He becomes a trustee for the other party, so far as the specific property is concerned, and he must respect his right of reclamation.
The authorities all concur in holding that, if one who has conveyed property during infancy is shown to have had possession of the consideration received in specie, upon arriving at age, and if it appears that he thereafter disposed of it, so that it can not be restored, or if he refuses, upon request, to surrender it, such conduct may amount to a confirmation or ratification of the conveyance, and defeat the recovery of
An infant, upon coming of age, will not be permitted to affirm in part and avoid in part. Hubbard v. Cummings, 1 Maine, 11 (Ewell Lead. Cas. 161, and note). He will not be permitted to repudiate the contract so far as to reclaim his property, and yet affirm it to the extent of retaining or disposing of the property received by him in the transaction. If he avoids his contract he must be willing, at least, to restore the consideration, if in his possession and control. Price v. Furman, 27 Vt. 268. "While it may be true, as has sometimes been asserted, that affirmance and disaffirmance are, in their nature, mental assents, the l$w can not regard that mental condition as a disaffirmance which assents to a reclamation of the land conveyed, but dissents from a restoration of the consideration then in hand. It is only when the mind assents to a restoration of the specific consideration possessed, as well as to the assertion of a claim to the property conveyed during minority, that it can be said an effectual disaffirmance has occurred. Manning v. Johnson, 26 Ala. 446 (62 Am. Dec. 732, and note); Chandler v. Simmons, 97 Mass. 508 (93 Am. Dec. 117, and note); Tobey v. Wood, 123 Mass. 89.
Giving notice of a disaffirmance, without offering to restore the consideration, although it remains in hand in kind, is, at best, an equivocal act. If afterwards, the infant being of age, the consideration is deliberately disposed of,It must be held that there was no bona fide purpose to disaffirm.
As we have seen, the plaintiff retained the consideration in specie until after the commencement of this suit, which, it may be observed, according to the frame of the complaint, is in the nature of an equitable action for general relief, as well as to recover the land, when she joined in a conveyance
The judgment is affirmed, with costs.