54 Miss. 121 | Miss. | 1876
delivered the opinion of the court.
The bill is filed to enjoin an action of ejectment, or rather to prohibit the issuance of a' writ of habere facias upon judgment in ejectment, and to compel the plaintiff in said judgment to file a perpetual eesset processus.
The facts are these: In June, 1868, Elisha Robbins bought from one Rucker a tract of land in Claiborne County, consisting of two hundred and ninety acres, known as “ Hunter’s Rest; ” paid for it with his own means; and, for the purpose of defeating certain creditors residing in the State of Indiana, whose claims he anticipated would be sent for collection to this State, had title made to his daughter Sally, at that time in her nineteenth year. He avowed this purpose to a few confidential friends, stating that his daughter would convey to himself, or to whomsoever he might designate, whenever requested. He owed at this time, to the complainant and appellant, Mrs. Hattie M. Ferguson, $1,300 borrowed money, and seems to have had no intention of defeating this debt. In September following, desiring to borrow more moiiej' from her, and to secure the same, he caused his daughter to convey
On this state of facts the bill was filed to enjoin a prosecution of the action of ejectment, but, the Chancellor having
All the facts charged in the bill were undoubtedly proved, if -we except the allegation that the daughter knew of the father’s indebtedness at the date of the purchase; but the Chancellor denied relief, and dismissed the bill, upon the ground that nothing had been charged or proved which could justify the interference of a court of equity.
The bill does not set forth the particular aspect with which it is framed, and cannot be supported on several of the grounds upon which it is sought to be upheld here. For instance, it is not good as an attempt to set aside the fraudulent conveyance from the original vendor, Rucker, to the daughter, because there is no judgment against the father, nor is any such relief prayed for, nor is there any allegation that the debt of $1,300, due at the time the conveyance was made, and as to which alone it was fraudulent, is still due, or was liquidated by the conveyance of the land to the complainant.
Nor is it possible to maintain it upon the idea, most strongly
It only remains to consider whether the bill charges and the facts show a case of such fraud upon the part of the infant as will justify a court of equity in prohibiting an assertion by her of her legal title.
Two principles, equally ancient and equally well settled with respect to the contracts and liabilities of infants, and which, as abstractly stated, seem not antagonistic, have been found in practice to produce two conflicting lines of decision, which it is difficult to reconcile; or rather it is difficult to determine satisfactorily where one ends and the other begins. 1. The contracts of infants, except for necessaries with which they have not been supplied by their guardians, impose no liability upon them which is not voidable at their election. 2. Infancy is a shield, and not a sword, and cannot be set up to defeat liability for torts, trespasses or frauds.
All the cases holding this doctrine may be traced back to Johnson v. Pie, decided in 17 of Charles II., and reported in 1 Lev. 169. That was an action on the case, “for that the defendant, being an infant, affirmed himself to be of full age, and by means thereof the plaintiff lent him ¿6100, and so he had cheated the plaintiff by this false affirmation.” After verdict for plaintiff, motion in arrest of judgment was made, upon the ground that action “ would not lie for this false affirmation.” Counsel cited Grove v. Nevill, 16 Car. II. Rot. 400, decided the previous year, in which it had been ruled that an action would not lie against an infant for selling a false jewel, affirming it to be a true one. To which it was answered, that this was an action of trespass on the case, and that an infant was chargeable for trespasses, though not for contracts. The
As before remarked, this judgment has formed the basis of a long line of decisions in England and America, substantially denying any redress in a court of law against the fraudulent conduct of infants in any manner connected with a contract. McPherson on Infancy, 482; Jennings v. Rundall, 8 T. R. 335 ; Brown v. Dunham, 1 Root, 272 ; West v. Moore, 14 Vt. 447; People v. Kendall, 25 Wend. 399; Price v. Hewett, 8 Exch. 146 ; Penrose v. Curren, 3 Rawle, 351; Wilt v. Welsh, 6 Watts, 9 ; Brown v. McCune, 5 Sandf. (N. Y.) 224; Norris v. Wait, 2 Rich. Law, 148.
The other class of decisions to which we have alluded fully recognizes the non-liability of an infant upon his contracts, but they draw a distinction between holding him upon the contract and estopping him, or making him responsible for his frauds, deceits and falsehoods, in matters connected with but not forming a constituent part of it. They say that the action brought, or the defence set up, against him must sound in tort, and not in contract; and, if it does sound in tort, it will not be defeated, although the deceit complained of was connected with the contract. Some of these cases repudiate the authority of Johnson v. Pie, ubi supra, and say that the case of Grove v. Nevill, referred to above, and relied upon by counsel in that case, was not in point, because the action, brought for the affirmation that the false jewel was a true one, was but an action upon the warranty, which necessarily is an action upon the contract, whereas the action for the false affirmation by the minor that he was adult, while it induced the opposite party to enter into the contract, formed no part of it. Thus, in Pitts v. Hall, 9 N. H. 441, an infant had bought a lot of hats, for which he executed his note. Upon suit brought upon the note he successfully interposed the plea of infancy. An action was then brought against him for the deceit practised in affirming at and before the purchase that
As shadowy and confusing as this distinction between non-liability on the contract and liability arising from some' fraud practised in connection with it may sometimes become, it has received, in some shape, the support of a very large number of courts, and of many of the most eminent commentators, and may be said to be sustained by the weight of American, if not of English, authority.
The Supreme Court of Massachusetts went to the length of holding that, where goods had been obtained by a minor upon the false affirmation that he was of age, the fraud vitiated the contract, that no title ever vested in the minor, that he might be treated as having unlawfully converted them, and might be sued in trover or replevin. Badger v. Phinney, 15 Mass. 359. This doctrine is expressly sanctioned by Judge Story. Story on Contracts, §§ 107, 111.
Kent declares that “ infants are liable in actions ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts or frauds.” He warns us, however, that the act must be wholly tortious, and that “ a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant in trover or case by a change in the form of the action.” 2 Kent Com. 241. The warning is salutary; but whether it can always be heeded, and the proper line of distinction observed, is somewhat doubtful.
In the American notes to the case of In re King, 68 Eng.
These principles find illustration in the following among many other cases : Humphrey v. Douglass, 10 Vt. 71; Lewis v. Littlefield, 15 Maine, 233; Wallace v. Morss, 5 Hill (N. Y.), 391; Walker v. Davis, 1 Gray, 506; Homer v. Thwing, 3 Pick. 492; Vasse v. Smith, 6 Cranch, 226; Burley v. Russell, 10 N. H. 184; Kilgore v. Jordan, 17 Tex. 341; Fish v. Ferris, 5 Duer, 49; Norris v. Vance, 3 Rich. 164; Reeve on Domestic Relations, 259; Towne v. Wiley, 23 Vt. 355 ; Elwell v. Martin, 32 Vt. 217; Oliver v. McClellan, 21 Ala. 675.
Some of these cases seem to verge too strongly on contract to be maintainable as torts or trespasses. Especially is this true of the cases of Fitts v. Hall and Vance v. Word, ubi supra, which are pronounced unsound by the editors of American Leading Cases, vol. i. (4th ed.) 261, 262. It is admitted, however, that a distinct and wilful tort may be made the basis of a suit against an infant, though it grows out of a contract, provided the plaintiff is not forced to rest the liability upon the contract.
Vasse v. Smith, ubi supra, is usually considered, the leading
This distinction between the contracts and frauds of infants was adverted to by us in the case of Upshaw v. Gibson, 53 Miss. 341, and it was there intimated that, in a proper case, we might be prepared to follow it. It is to be remarked that neither that case nor the one at bar requires a decisive position to be taken by us on this vexed question; but as it is likely frequently to arise, and has never undergone a thorough examination in this State, it was thought well to group some of the conflicting decisions, and ascertain, if possible, the exact line of demarcation between them.
In Hill v. Anderson, 5 S. & M. 216, it was declared that an infant vendor may recover back his property, real or personal; but in such cases he must refund what he has received. In Quinn v. Moss, 12 S. & M. 365, this doctrine, it was said, would not apply to the reception of a legacy by an infant from
Turning from courts of law to those of equity, we find the law of estoppel, as applicable to the contracts of infants, on a much more satisfactory!' and clearly defined footing. From the earliest times it has been held that infants will be estopped by a court of chancery from asserting title to property where, either by their silence or their active interference, they have entrapped third persons into purchasing it from others, or into advancing money upon it.
Thus, in Savage v. Foster, 9 Mod. 35, in 9 of Geo. I., it was said“ Now, when any thing in order to a purchase is publicly transacted, and a third person knowing thereof, and of his own right to the lands intended to be purchased, doth not give the purchaser notice of such right, he shall never afterwards be admitted to set up such right to avoid the purchase ; for it was an apparent fraud in him not to give notice of his title to the intended purchaser: and in such case infancy or coverture shall be no excuse ; for though the law prescribes formal conveyances and assurances for the sales and contracts of infants and feme coverts, which every person who contracts with them is presumed to know, and if they do not take such conveyances as are necessary, they are to be blamed for their own carelessness, when they act with their eyes open; yet when the right is secret, and not known to the purchaser, but to themselves, or to such others who will not give the pur
In Evroy v. Nicholas, in 6 of Geo. II. (reported in 2 Eq. Cas. Abr. 488, 489), an infant who had put his signature as a subscribing witness to a lease of his realty for twenty-one years, executed by one who assumed without authority to act as his guardian, was thereby held estopped. In Drury v. Drury, 2 Eden, 39, Lord Chancellor Northington held that a female infant who accepted a marriage settlement, by which she obtained a jointure by way of annuity, in lieu of dower in her husband’s estate, was not thereby estopped to claim dower after her husband’s death. But Mrs. Drury having subsequently intermarried with the Earl of Buckinghamshire, an appeal was prosecuted to the House of Lords, and the decision was reversed, opinions being delivered by Lords Hard-wicke and Mansfield, both of whom held her bound, upon the ground that the contrary doctrine would amount to a fraud upon the intended husband. Lord Mansfield made, in this case, the noted remark, that he “never would put such an exposition on the law, as to make it necessary to apply to Parliament to rectify it.” Earl of Buckinghamshire v. Drury, 2 Eden, 60, 74. His lordship seems not to have been afraid of the reproach of manufacturing law, instead of expounding it, but to have been of opinion that the common law and equity jurisprudence of England were expansive systems, which contained within themselves the germs of a progress which made them equal to all the developments of human affairs.
• It may be stated as a general proposition, fully borne out by the authorities, that whenever an infant who has arrived at years, of discretion, by direct participation, or by silence,' when he was called upon to speak, has entrapped a party, ignorant of his title or of his minority, into purchasing his property from another, he will be estopped in' a court of chancery from setting up such title. Sugden on Vendors, 507, 508; Watts v. Creswell, 9 Vin. Abr. 415; Cory v. Gertcken, 2 Madd. 40, 46;
The doctrine is decisive of the case at bar. Sally Robbins, now Mrs. Bobo, knew her rights, such as they were, when, at the age of nineteen, she conyeyed the property to her father to enable him to borrow money on a mortgage thereof to Mrs. Ferguson, as she was fully informed he intended to do. The latter was ignorant of the minority of the former, and consequently ignorant of her title, when, some days thereafter, she loaned her money and accepted the mortgage, and equally ignorant when she received the fee-simple conveyance, for which, as the record discloses, she reluctantly gave a credit on the note in excess of the value of the property.
Under such circumstances, a court of equity will restrain Mrs. Bobo from the assertion of her legal title. This proceeds not so much from the deed executed to her father, which ordinarily would be voidable, but from the knowledge which she had that it was to be used to procure money from the coin-plainant. She is estopped from the perpetration of a fraud.
The decree of the court below dismissing the bill will be reversed, and cause remanded. It being suggested by counsel that the pleadings below did not sufficiently advise the defendant that the complainant rested her case upon a claim of fraud upon the part of the infant, and that therefore no proof was taken by the defendant upon that point, leave will be granted to both sides to amend pleadings and take further testimony.