Damron v. Commonwealth

110 Ky. 268 | Ky. Ct. App. | 1901

Opinion op the court by

CHIEF JUSTICE PAYNTER.

One Harrison Combs was indicted in tbe Boyd1 Circuit Court, and permitted to give bond in the sum of $550. The title to the property here in question ivas in John Combs, Jr. He desired to become surety for his brother Harrison, but the court would not accept him for reasons not necessary here to state.. To make John Combs, Sr., a good' bondsman, he 'conveyed to him the property, reciting in the deed the purposes for which it was conveyed to him. The Circuit Judge would not accept John Combs, Sr., as surety unless there was stated in the deed the purpose for which John Combs, Jr., conveyed him the property. This deed was duly recorded. Tlie bond was forfeited, and the Commonwealth had an execution levied upon the property, had it sold, and instituted this proceeding to recover the possession of it. It appears from the testimony in the case that John Combs, Jr., was about twenty years of age, when he made the deed, and upon arrival at age, for the recited consideration of $75 (although the property was worth over $500), he conveyed it to the appellant, Wayne Damron, Sr. It is insisted here that John Combs, Jr., being a minor at the time he made the deed, could disaffirm the contract, and that the deed to Damron amounted to a disaffirmance of it. That a minor can usually disaffirm contracts which he makes on arriving at twenty-one years of age is not a debatable question, because his right to do so is generally recognized. It is equally certain that the deed to Damron, if he had the right to disaffirm under the facts of this case, would amount to it. The right of a minor to generally disaffirm a contract is not involved here, but. the question is, under the facts of this case, was he estopped to do so? Before the Circuit Gourt would consider the question of allowing John Combs, Jr., to convey the property to John Combs, Sr., with a view of making him a good bondsman, he was required to testify as to his age, and in open court testified that lie was over twenty-one years of age. If this court held that ho should be permitted to disaffirm his contract, then it would allow him to perpetrate a fraud upon John Combs, Sr., and the Commonwealth. That an infant must restore the property which he obtains in a contract before he can avoid it is the universal rule where he has been guilty of deceit or fraud. Petty v. Roberts, 7 Bush., 411. Here the infant received no jiroperty, and, of -course, has none to restore. The only thing that he could have done in compliance with his contract would have been to pay the forfeited bond. In Schmitheimer v. Eiseman, 7 Bush., 298, it appeared the deed was made by an infant ferns covert. She sought to avoid it on, the ground of her infancy. The facts appeared to be that, in order to inddce the purchaser of her property to accept a deed, and pay for it, she made an oath before a notary public that to the best of her knowledge and information she was more than twenty-one years of age. The court held that she was not entitled to recover the property, ■and said: “'Neither infancy nor coverture can excuse parties guilty of fraudulent concealment or misrepresentation, for neither infants nor femes covert are privileged to practice- frauds upon innocent persons.” We are aware that in some jurisdictions the contrary view is taken, but we (believe in most jurisdictions the rule is announced as in the case above cited. However, it is unnecessary to review the opinions of the courts of other States on this question, as we will follow the rule of this court. W'e would not hold in all cases that, if an infant testified that he- was twenty-one years of age, the party who dealt with him by reason of that fact would be protected. It might be so manifest that an infant was not twenty-one years of age that the party could not claim to have been deceived by his statement; hence no fraud would have been practiced upon him. Damron is in no better condition to question the validity of the deed than his vendor. As we have said, the deed recited the consideration for the -conveyance; hence he had notice of the terms of .the contract between the parties. When Combs attempted to disaffirm the contract, Damron took the risk of his right to do so. The judgment is affirmed.