7 Mont. 171 | Mont. | 1887
The opinion states the case.
This is an action of ejectment. There was judgment upon the pleadings for the plaintiff, and the case is brought here for alleged errors of law apparent upon -the judgment roll. The appellants disclose in their amended answer the fact that they purchased the land in controversy of the plaintiff when he was a minor, and they allege that they paid him the price agreed upon, took a written obligation from him, in which he pledges his honor that he will make them a deed when he becomes of age; and also took a written obligation from C. L. Clark, the father of respondent, binding him to have the deed made by his son when he becomes of age.
But the facts set out in this case, in appellants’ answer, are peculiar. In the original answer they allege that the consideration was paid to plaintiff, or his father. In their amended answer they allege it was paid to the father; and in their last amended answer — which amendment was made after judgment— they aver it was
The next error complained of is that the plaintiff below should have given notice of his intention to disaffirm before he brought his suit. We do not think any notice of disaffirmance necessary before bringing suit. It is said that the act of disaffirmance must be of such a character as to be as solemn and notorious as the original contract. Bac. Abr., vol. 3, 136; Lessee of Tucker v. Moreland, 10 Pet. 58. We do not know of any more solemn and notorious way to disaffirm than by bringing a suit to recover the property. Tyler on Infancy, p. 73, sec. 31; Walsh v. Young, 110 Mass. 396.
Let the judgment be affirmed, with costs.
Judgment affirmed.