97 Mass. 508 | Mass. | 1867
These exceptions bring up the instructions under which the right of John E. Chandler to recover certain land was submitted to the jury. The defence was based upon a conveyance made by John E. Chandler while a minor, and ratified by him after he became of age. No question is made but that he is completely divested of his title, unless the pendency of proceedings against him as a spendthrift deprived him of the right to confirm his deed. These proceedings were commenced, and a copy filed in the registry of deeds, in accordance with Gen. Sts. c. 109, § 10, before he became of age. The alleged ratification was made after an appeal from the decree of the probate court appointing a guardian over him as a spendthrift. Upon the appeal a guardian was subsequently appointed by this court. The statute above referred to provides that “if a guardian is appointed upon such complaint, all contracts, except for necessaries, and all gifts, sales or transfers of real or personal estate, made by the spendthrift after such filing of the complaint and order and before the termination of the guardianship, shall be void.”
Two questions are presented: First, whether the deed of a minor may be avoided, after he becomes of age, by a guardian appointed over him as a spendthrift; second, whether the ratification of a deed, voidable only on the ground of minority, is embraced ir. the disabilities created by the statute.
A deed obtained by undue influence, though voidable only by the party wronged, may be avoided by a guardian afterwards appointed. Somes v. Skinner, 16 Mass. 348. The rights of the ward are to be asserted in his own name; but, upon the
Upon the second point it is urged that the deed of a minor may be confirmed by a mere waiver of the right to avoid, or by implication from his acts or even from his neglect to exercise tne
It appears to us to be the purpose of the statute that the same disabilities which rest upon the ward by virtue of the guardianship when adjudicated, shall be imposed upon him from the time of filing and recording the complaint. Notice is thereby ■ given to the world that all dealings with him, or attempts to acquire property or rights from him, will be liable to be defeated by any decree of guardianship which may follow such complaint. It is competent for a statute thus to make an adjudication of disability relate back to the time of the commencement of proceedings.
The history of the legislation upon this subject seems to indicate that such is the intent of the statute now in force. The statute of 1783, c. 38, provided for the appointment and duties of guardians of lunatics, spendthrifts, etc. Section 7, which applies to spendthrifts only, contains this clause : “And no sale or bargain of any real or personal estate, made by such person or persons, after the appointment of guardianship as aforesaid, shall be held valid in law.” The statute of 1818, c. 60, relating to spendthrifts, provided for the deposit of a copy of the complaint and order of notice in the registry of deeds, and contained the following clause: “And in case a guardian shall be appointed by the judge of probate to the person complained
Another ground relied on by the defendant is that the deed cannot be avoided without a return of the consideration. We do not understand that such a condition is ever attached to the right of a minor to avoid his deed. If it were so, the privilege would fail to protect him when most needed. It is to guard him against the improvidence which is incident to his immaturity, that this right is maintained. Gibson v. Soper, 6 Gray, 279-282. Boody v. McKenney, 23 Maine, 517. If the minor, when avoiding his contract,.have in his hands any of its fruits specifically, the act of avoiding the contract- by which he acquired such property will divest him of all right to retain the same; and the other party may reclaim it. He cannot avoid in part only, but must make the contract wholly void if at all; so that it will no longer protect him in the retention of the consideration. Badger v. Phinney, 15 Mass. 359. Bigelow v. Kinney, 3 Verm. 353. Or, if he retain and use or dispose of such property after becoming of age, it may be held as an affirmance of the contract by which he acquired it, and thus deprive him of the right to avoid. Boyden v. Boyden, 9 Met. 519. Robbins v. Eaton, 10 N. H. 561. But if the consideration has passed from his hands, either wasted or expended during his minority, he is not thereby to be deprived of his right or capacity to avoid his deed, any more than he is to avoid his executory contracts. And the adult who deals with him must seek the return of the consideration paid or delivered to the minor in the same modes and with the same chances of loss in the one case as in the other. Dana v. Stearns, 3 Cush. 372-376. It is not necessary in order to give effect to the disaffirmance of the deed or con
Upon the case as stated in the exceptions we are of opinion that the attempt of John E. Chandler to ratify his deed was ineffectual, and that it may be avoided now by his guardian without the previous return, or the offer to return, the consideration paid therefor. The ruling of the superior court appears to have been otherwise, and therefore these exceptions must be sustained. But as the two wards are joint demandants in the suit, as tenants in common, and as the verdict is properly rendered against the other demandant, the tenant is entitled to judgment against both. This seems to have been the early construction of the St. of 1785, c. 62, § 3, which authorized co-heirs and joint-tenants, at their election, either to sever or to join in real actions. Poor v. Robinson, 10 Mass. 131. Oxnard v. Proprietors of the Kennebeck Purchase, 10 Mass. 179. The change by the St. of 1828, c. 137, § 3, extending this right to all tenants in common, (Gen. Sts. c. 134, § 9,) does not seem to warrant a different rule of practice in this respect. If the right of either joint demand-ant to recover proves defective, the action must fail, unless the writ be amended by striking out such party before verdict.
The judgment ought not however to conclude the right of John E. Chandler. He may therefore have the verdict set aside as to him, in order that he may become nonsuit. The tenant will then have his judgment against both demandants, and John E. Chandler will be at liberty to prosecute his right by a separate suit. ' Exceptions sustained