Eaton's Administrator v. Perry

29 Mo. 96 | Mo. | 1859

Napton, Judge,

delivered the opinion of the court.

The second instruction given by the court in this case was, in. our judgment, erroneous.

Drunkenness does not render a deed .made under its influence absolutely void, but only voidable. A deed, made by a person when drunk to such an extent as would authorize him to repudiate it, may be ratified by the maker when sober so as to bind him and his personal representatives. (Taylor v. Patrick, 1 Bibb, 168; Arnold v. Hickman, 6 Munf. 15.) Judge Colcock remarks, in Williams v. Inabuck, 1 Bailey, 343, " Even if a man is so much intoxicated as not to know what he is doing, he may afterwards confirm the contract by his acts. If he does not intend to be bound by it, he should go, the instant he is restored to his senses, and return all that he received as a consideration.” Besides, the defence of drunkenness, like that of infancy, duress, imbecility, &c., is a personal one, and if the party, whose interest is affected by a contract made when drunk, chooses to abide by it when sober, third persons are not permitted to interpose. (See Cole v. Gibbons, 3 P. Wins. 290.)

The drunkenness of William M. Perry, the grantor in the deed sought to be impeached by one of his creditors, had nothing to do with the case so long as William M. Perry himself acquiesces in this deed. There is nothing in the case to show that William M. Perry desires to avoid this deed, and, for aught that appears, he may have ratified it, when sober.

There was no evidence of any actual fraud on the part of the mother, in procuring this deed from her son, other than the circumstance of drunkenness, to which we have alluded. The habitual intemperance of the son, connected with his utter unfitness to manage his own affairs, certainly furnished no grounds for imputing fraud to his mother for simply attempting to place his property, or rather his expected property, beyond the reach of sharpers. That part of the second instruction, therefore, which put to the jury the question of fraudulent designs on the part of Mrs. Perry, appears to be entirely gratuitous.

The third instruction submitted to the jury a question of law — the proper construction of the first section of the act concerning fraudulent conveyances. The court should have explained to the jury what circumstances constituted a conveyance “ a trust to the use of the person making it” so as to be within the operation of this section. (Robinson v. Robards, 15 Mo. 459.) It will be seen that this section applies only to voluntary conveyances, and does not embrace deeds founded on a valuable consideration. (1 Tuck. Comm. 344.) The deed from William M. Perry to his mother was founded on a valuable consideration; but if it was merely voluntary, and there were no debts at the time of its execution, it is not perceived bow the circumstance that Mrs. Perry, the grantee, intended to preserve the property for her son’s support could of itself make the deed void.

The judgment is reversed and the case remanded.

The other judges concur.