Irvine v. Irvine

| Minn. | Dec 15, 1860

By the Oowrt

Atwater, J.

The Plaintiff in error brought his action in the Court below to compel the Defendant to surrender and cancel a deed executed and delivered by the Plaintiff, as the complaint alleges during his minority. The Defendant demurred to the complaint, and the demurrer was sustained. The Plaintiff brings this case before this Court by writ of error.

One of the grounds of objection raised by the demurrer, and the only one we deem it necessary to notice is, that the complaint does not state the age of the Plaintiff. We think this objection well taken, and that the Court below was right in sustaining the demurrer. The counsel for the Plaintiff in error claims that the presumption of law is, that a party commencing his action in Court, is of full age, and. entitled to maintain the action in his own name, until the contrary is shown. In most actions this is true, but the case at bar forms an exception. For the whole cause of action in this case is based upon an act done by the Plaintiff during infancy, and the Plaintiff being in Court, is compelled to plead that the act was done during his infancy. The age of the Plaintiff at the time of the execution of the deed is not stated, nor is there anything in the complaint from which the Court can infer that the Plaintiff has attained his majority. The nature of the relief he seeks, requiring the Plaintiff, after he appears in Court, to show himself a minor at the time of doing a certain act, the presumption is that such condition continues until the Plaintiff himself negatives it. The pleading of a party must be taken most strongly against himself, and there can be no implication in favor of the Plaintiff as to his age, from the mere fact that he has commenced an action in his own name. Such implication can only obtain where the pleading of a party does not negative the presumption in his favor. And being in presumption of law an infant, the action cannot be maintained, for he has not a status in Court in his own name, nor, aside from this, can he disaffirm his contract until he arrives at full age. (Jackson vs. Carpenter, 11 John, 539; 14 John. 124; Tucker vs. Moreland, 10 Pet. 58; Bigelow vs. Kinney, 3 Verm. 353; 1 Hayw. 143; Reeves Dom. Relations 254; 4 Sandf. 418.)

The judgment below must be affirmed.