69 N.Y. 553 | NY | 1877
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *556 The important question in this case is whether it was necessary for the defendant to restore the consideration received for the transfer of the land to the plaintiff to entitle him to rescind the contract. The defendant is a son of the plaintiff. He conveyed to the plaintiff the premises in question when under the age of twenty-one years, for which he received the sum of $400. It appeared affirmatively that the son had used up, lost, or squandered the money before he became of age, and had no part of it, nor any other property except the land at the time of arriving at age. After a careful examination of the authorities and the conflicting opinions below, we are inclined to concur with the opinion of GILBERT, J., in affirmance of the judgment. We do not deem it profitable to review the authorities upon the question, and do not intend to extend our decision beyond the principal facts involved in this case.
There are expressions of judges, and general rules laid down by text writers, and some cases which seem to favor the doctrine contended for by the appellant, but in nearly all of them there is a manifest distinction in the facts. The weight of authority is to the contrary effect. (10 Peters U.S., 58, 74;
Mere acquiescence for three years after arriving at age without any affirmative act was not a ratification. (11 J.R., 539; 14 id., 124; 23 Maine R., 517.) The entry made by the defendant in this case for the purpose of disaffirming the contract with notice of such intention was sufficient to entitle him to recover. (17 Wend., 120.)
The judgment must be affirmed.
All concur; ANDREWS, J., absent.
Judgment affirmed.