130 Tenn. 459 | Tenn. | 1914
delivered the opinion of the Court.
The case is one wherein Mary M. Thurman, the mother of complainants, being then the remainderman, joined with the life tenant in a conveyance of certain land to the railroad company for right of way while she was an infant and unmarried. This was in 1892. She was then eighteen years of age. * She married in
The rule was long ago laid down:
“When the court can pronounce the contract to be to the infant’s prejudice, if is void; when to his benefit, as for necessaries, it is good; and, when the contract is of an uncertain nature as to benefit or prejudice, it is voidable only at the election of the. infants. ”
If the case.stated falls under the third division of the rule, the hill must he dismissed, because although complainants’ mother was an infant when she made the deed, and subsequently married while still an infant, it became her duty, although under coverture, to disaffirm within a reasonable time, since the disabilities of infancy and coverture cannot be tacked. Lancaster v. Lancaster, 13 Lea, (81 Tenn.), 126, 131 et seq., an authority precisely in point. Mary M. Thurman lived thirteen years after the execution of the deed, and this would be sufficient time from which to infer an affirmance. Scott v. Buchanan, 11 Humph. (58 Tenn.), 468.
On the other hand, if the case falls under the first division of the rule, the result must be quite different. We are of the opinion that it should be so classed. A deed of an infant’s land without consideration is void, not merely voidable. Swafford v. Ferguson, supra; Robinson v. Coulter, 6 Pick., (90 Tenn.), 705, 18 S. W., 250, 25 Am. St. Rep., 708. It is true that we cannot say the deed was wholly without consideration, but it was so nearly so that we can confidently affirm that it was to the infant’s prejudice. The covenant of the railway company being verbal only, and not capable •of being performed within one year, was void under the statute of frauds. Therefore there was no obligation on the part of the infant to disaffirm. In law, the deed was only that of the life tenant. The latter lived,
The status, then, was the railroad was in possession. As to complainants, the possession became adverse only on the death of the life tenant, and the damages were properly assessed as of that date. We have no donbt they could, have instituted proceedings in the circuit court under Shan. Code, sec. 1866, for damages in the customary way or for the appointment thereunder of a jury of view, and have had their rights adjudged accordingly. The course they pursued, however, was to come into chancery to have the deed declared void, and as incidental relief to have the damages assessed. The chancellor approved this practice, referred the matter to the master, and the damages have been assessed through a commission agreed on by the parties, on the report of which commission the master based his findings, and! no exceptions were filed to the amount so found. It is said, however, that the chancery court had no jurisdiction of the subject-matter. It is true that court has no jurisdiction of a proceeding brought solely for the condemnation of land for public improvements, or to administer the relief provided by section 1866-, supra, in lieu of regular condemnation proceedings, where the railway company has -entered on the land without instituting such proceedings, and without the owner’s consent; but the complainants had the.right to file their bill in equity, as heirs of their mother (Matherson v. Davis, 2 Cold., 443; Walton v. Gaines, 94 Tenn., 420, 29 S. W., 458),
The decree of the chancellor must be affirmed, with costs.