4 N.H. 441 | Superior Court of New Hampshire | 1828
delivered the opinion of the court.
The question to be decided in this case, is, whether the plaintiff at the time the act of which she complains was done, had such a possession of the locus in quo, that she can maintain this action ? This depends entirely upon the effect and operation of her own deed. When she made that deed, and when the act of which she complains, was done, she was an infant, under the age of twenty one years ; and if, by reason of her infancy, she had a right to elect to consider her deed as void and wholly without effect, then she might lawfully consider Wooddis as a disseizor, and bring a writ of entry, or as a trespasser, and bring this action at her election. 2 N. H. Rep. 456, Wendell v. Blanchard. But if her deed worked a transmutation of the possession at all events, so that an entry, or some other act, on her part, was necessary to revest the possessary title, then this action cannot be maintained. For it does not appear, that any entry had been made or other act done to revest the possession before the commencement of this action.
In general, where an infant has entered into an exec
With respect to executed contracts of infants, it seems, they are sometimes only voidable, and sometimes void or voidable at the election of the infant, like executory contracts.
Thus it is said, that if an infant sell a horse, or other chattel, and deliver the same with his own hand, the contract cannot be considered absolutely void so as to subject the purchaser to an action of trespass for the talc-ing of the same, although the contract may be rescinded. Perkins, sec. 13; 1 Mod. Rep. 137.
But if an infant sell a chattel and do not deliver it with his own hand, he may consider the contract as void and the purchaser a trespasser, if he take it. Perkins, sec. 14.
If an infant make a feoffment, he cannot bring trespass before he has avoided the feoffment by an entry. Bing. on Infancy, 60; 3 Burr. 1808; 8 Coke, 84.
A feoffment by an infant, cannot be considered by him as void or voidable at his election. It is voidable only.
But all other conveyances, in pais, by an infant, stand on the same ground as executory contracts, and may be considered and treated by the infant as void or voidable at his election. Bing. on Infancy, 62; Shop. Touch. 232.
We are, therefore, of opinion, that the plaintiff had a clear right in this case, to consider her deed as void and the defendants as trespassers, and there must be
Judgment for the plaintiff.