Eagan v. Scully

29 A.D. 617 | N.Y. App. Div. | 1898

Lead Opinion

Herrick, J.:

There was sufficient evidence to sustain the finding of the jury that Mary Margaret Scully was a minor at the time she executed the conveyance to her father, so that the only questions for us to consider are, whether such conveyance. was ratified after the minor attained her majority, and whether such conveyance was disavowed in due time.

It is a general rule that a conveyance hy an infant is valid until it is avoided by him after arriving at full age, and that he is entitled to exercise his right of avoidance at any time within the term of the Statute of Limitations after his majority. It has been held that mere delay in taking advantage of this privilege will not work a waiver or a ratification, and that ratification is a matter of intention and will not be inferred by a bare recognition of or a silent acquiescence in it, for any time less than the period of statutory limitation. (10 Am. & Eng. Ency. of Law, 649; Voorhies v. Voorhies, 24 Barb. 150; McMurray v. McMurray, 66 N. Y. 175; Green v. Green, 69 id. 553; Foley v. Mutual Life Ins. Co., 64 Hun, 63.)

While the acts of an infant after becoming of age may be such as to warrant an inference that he or she intended to ratify the act done during minority, still the inference to 'be drawn from such acts depends upon surrounding circumstances, and the inference to be drawn from the act of a stranger in blood in permitting his grantee, Avitliout objection, to - go on and make expenditures for the benefit and improvement of the granted premises, is different it seems to me from the inference to be drawn from the mere acquiescence of a daughter in the expenditures made by her father upon the premises inhabited by him, which seem to be the customary expenditures in keeping a homestead in habitable condition and in a state of good repair. No hostile inference - should be drawn from the fact that the child permitted the father to occupy the homestead during his lifetime, Avithout asserting her OAvnership.

The question is one of fact, and the jury have passed upon it in this case, and I can see no reason for reaching a different conclusion from the one they did.

While a long period has elapsed from the time of the conveyance to its disaffirmance, yet that act of disaffirmance was-made within the statutory period of limitations, and within a reasonable time after the death of the father.

The judgment should be affirmed, with costs.

All concurred, except Putnam, J., dissenting, and Landon, J., not voting.

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Dissenting Opinion

Putnam, J. (dissenting):

I am unable to concur.

In the first place, I think the ruling at folio 136 of the case was erroneous. Had the defendants been able to show that Mrs. Eagan had admitted in her lifetime, and while she was an infant, that Scully paid her $625 as a consideration for the conveyance, such evidence would undoubtedly have been competent. So her written admission contained in the deed was competent to establish the consideration paid. This evidence, I think, was material on the questions involved in the case.

Also, I am inclined to think that the ruling of the trial judge, in allowing the witness Eagan to guess at the age of his wife after it appeared that he knew nothing about it, was erroneous.

I am in doubt whether, under the evidence given in this case, Mrs. Eagan should not be deemed to have confirmed her deed after she arrived at age. It is said that there are three modes of affirmance : By an express ratification; by the performance of an act or acts from which an affirmance may reasonably be implied; by the silence of the infant after his or her arrival at full age, coupled with his retaining possession of the consideration, or availing himself in any manner of the conveyance, or receiving any benefit thereunder. (See Kline v. Beebe, 6 Conn. 494, 505.)

In 10 American and English Encyclopaedia of Law, 649, it is said: “ But acts of the infant after arriving at full age, inconsistent with the assertion of the privilege, or which fairly indicate that he intends to ratify the deed, will prevent him from disaffirming the conveyance.”

In this case the infant, after arriving at full age, lived with her father on the premises in question. She must be deemed to have known that she had transferred the title of the property to her father, and that he was in possession as the owner; that the property was not assessed to her, but was assessed to him. Her father was exercising acts of ownership in repairing and using the premises, and during the period in question she accepted the hospitality and support afforded her by her father in the premises in question. Some of the repairs which it was shown were put on the premises by Scully in her lifetime were not ordinary repairs, but permanent changes in the structure of the building. After her marriage she was frequently a visitor at the premises in question, and knowing that her father had her conveyance of said premises, and was occupying the same as owner, paying the taxes and assessments thereon, repairing the same, she took no step to disaffirm the contract.

Note.— The rest of the cases of this term, will he found in the next volume, 80 App. Div.— [Rep.

Does not the conduct of Mrs. Eagan for about six years after she became of age indicate an intent on her part to affirm the contract, and from the acts above referred to, may not an affirmance be reasonably implied? And after she had thus acted for a period of about six years after she became of age, should her heirs be allowed to disaffirm the deed? To make the voidable deed executed by Mrs. Eagan valid, required no express ratification. A ratification might be shown by acts, by conduct, which indicated the intent of Mrs. Eagan, after becoming of age, to affirm the contract.

It will be observed that in the cases referred to in the prevailing opinion such a state of facts as appears in this case was not shown.

I favor a reversal of the judgment.

Judgment and order affirmed, with costs.