17 Tex. 341 | Tex. | 1856
The errors assigned are,
1st. In refusing charge No. 1, asked by counsel for the defendant.
2nd. In refusing to grant a new trial.
3rd. The finding of the jury was contrary to the law and the evidence.
The first assignment has been abandoned, and we will consider very briefly the second, viz : the refusal to grant a new trial. This was sought first on the ground of newly discovered evidence. 2nd. The unexpected absence of pamphlet Acts of the Legislature, which contained matter material to the defence, and which counsel could not find when the cause was announced for trial, operated as a surprise and greatly weakened the defence. 3rd. That the jury returned a verdict under a misapprehension of the law of the case,.finding for the plaintiff as having the oldest title, believing both titles to be equally defective, and not being apprised of the legal principle that a plaintiff must recover on the strength of his own title.
As to the first, viz : that of the newly discovered evidence, it is not necessary to recapitulate the rules under which an ap
As to the second ground, viz : that of surprise, the defendant, if he really deemed the absence of the Acts of the Legislrture as prejudicial to his defence, should have moved for a continuance, or for a non-suit, with leave to set it aside. It is too late after taking the chances of a trial, to urge such cause as a ground to re-open the controversy.
The third ground, viz : that the jury mistook the law of the case, has less force, if possible, than the preceding. The Court responds to the law, and the jury to the facts of a cause, and a mistake by either in their several provinces, is good ground to set aside a verdict. But the views and notions which jurors individually or collectively may entertain of the law cannot affect their finding. Jurors may be polled, to ascertain their concurrence, but not the grounds on which they reached their conclusions. If such inquiries were tolerated, and their mistakes in law be allowed to defeat their action, trials by jury would become nearly, if not altogether an impracticability.
The third error is that the finding of the jury was. contrary to the law and the evidence.
The appellee very justly contends that this assignment cannot reach any supposed misdirection in the charges of the Court; that before the charge can be reviewed, there should be a specific assignment of error in the instruction to the jury ; and this has not been done, either in the motion for a new trial, or in the assignments of error to this Court. But as the positions in the charge have been elaborately reviewed by coun
The charge was to the effect, that if the jury believed from the evidence, that the deed to Jordan from Clark was founded on a valuable consideration, viz : the settlement of a claim due from Clark to Wood, and that Jordan was induced to take said conveyance by the representations of Clark that he was twenty-one years of age, made with intent to deceive Jordan and cause him to receive the deed, their verdict should be for the plaintiff, as Clark cannot be heard, in such case, to gainsay1 his fraud. If Clark executed the deed to Jordan during his minority, in order to effectually disaffirm it after Ms majority, he must offer first to return to Jordan the consideration paid by Jordan to him for the land; if not, the deed' must be considered valid.
At the request of the defendant, the Court also charged, that an infant may disaffirm his voidable deed by the execution of another deed to a third person for the same property ; and if the jury believe from the evidence, that Clark never received any consideration for the land, then he had a right to disaffirm his former deed, and the execution of another deed by Clark was a disaffirmance of the deed to Jordan.
Before examining the question as to the effect of the fraudulent representations of a minor., that he is of age, in depriving Mm of the benefit of the plea of infancy, against contracts induced by such representation, it will be proper to state the facts to which this proposition refers. Wm. H. Estill, as the agent of Jordan, first called on Dr. Parsons who referred him to Dan" iel Clark ; that Clark, being called on for a deed, said yes, he would make the deed to any one that David Wood desired, for he, Wood, was one of the few who had paid him full value for his land. Estill also testified that the plaintiff had purchased
There being much conflict in the Common Law authorities, as to the effect of the fraudulent representations of a minor, that he is of age, upon his contracts, it may not be improper to refer to other systems, and especially our ancient Laws, which still control many rights, and to the great fountain of Roman jurisprudence, from which most of the law of the civilized world is derived ; and the principle embodied in those laws, on this point, will commend itself as eminently conducing to enforce honesty and fair dealing in contracts between man and man. The rule in Spanish Law, as deduced from Law 6, Tit. 19, Partidas 6th, is that if a minor represent himself to be of age, and from his person he appear to be so, any contract made with him will be valid, for the law protects those who are defrauded, and not those who commit fraud. By the Civil Law, as appears from 1st Domat, part 1, Book 4,' Tit. 6, Sect. 2, § 2377, it appears that if a minor gives out that he is of age, and by producing a false certificate of the registry of his christening, or by some other way, has made people believe that he is a major, he cannot be relieved against those acts into which he shall have engaged any one by this surprise : thus a minor having borrowed money by such means, although he has made no good use of it, yet his obligation will nevertheless have the same effect as that of a major. As a qualification, the author adds in a note, that the rule is to be understood only of the cases where the creditor has some just reason to believe that the minor was of age. For if there was no more than a bare declaration of the minor who pretended to be of age, the creditor ought to blame himself for his credulity. We may easily
But when we turn to the Common Law, embracing both the law and equity jurisdictions, we find confusion and conflict; the fraud binding the infant to the contract for the most part in I equity, whereas in the Law Courts, it seems, where the fraud is allowed any force, to have the effect of avoiding the contract | altogether, but giving the adult redress by allowing him, in j¡ trover or replevin, to recover the property fraudulently procured by the infant under his contract—the fraud amounting to a conversion. Story on Contracts embodies the doctrines in the Law Courts as follows : In §^66 he states that if the infant had been guilty of positive fraud, and thereby imposed upon the other party to his injury, he cannot set up his infancy as a defence to the action for the consideration, although the matter he in contract; for, by his fraud, be has put himself out of the pale of his privilege, and is responsible to the same extent as if he were an adult. Fraud renders the contract void ab initio, and not voidable ; and therefore if an infant, by fraudulent representations, deceive the other party and induce him to part with his goods, such an agreement will be utterly void, and the infant will be liable in action of trover for the conversion. He cannot take advantage of his own wrong. Tims if
The justice of these views is striking ; and if the fraud would, at law, deprive the infant of the- benefit of his plea of infancy, and bind the contract, they could without difficulty be maintained. But if the contract be wholly avoided by the fraud, the adult would have the right to be placed in statu quo, but not by suit on the contract.
But there are very respectable authorities in which it has
In Mills v. Graham, 4 Bos. & Puller, the defendant, at his own request, received some skins from the plaintiff to finish them, the plaintiff promising to pay any thing that might bo due. On application of plaintiff for the skins, the defendant refused to deliver them, setting up the plea of infancy. It was
The circuity of remedy in the Law Courts, against an infant, for fraud in his acts, is not a little surprising. It is an established principle, that his acts and contracts are generally voidable at his election, but are binding on the other party ; and therefore, in an action on contract, however fraudulesi may have been his conduct, the t.plea of infancy will avail. His fraud will not give the other party the benefit of the contract, as that is voidable at the election of the infant, but it will give him another remedy. It will allow him also to avoid the contract and recover his property, as if there had never been a contract, although the general principle of law is, that not he but the infant alone can avoid the contract. But these refined distinctions are not recognized in equity, and the general principle in that jurisdiction is, that a fraudulent representation, concealment or act by an infant will bind him.
In Brigham on Infancy, p. 113, it is stated that if an infant, above the age of discretion, be guilty of fraud in affirming himself to be of full age, or if, by combination with his guardian, he make any contract or agreement with intent afterwards to elude it by plea of infancy, a Court of Equity will decree it good, against him according to the circumstances of the fraud.
In 1 Story, Equity, § 385, several instances are given where a man’s acts or silence is such as to encourage others to treat Ms property as their own, as where knowing his title, he stands by and encourages or does not forbid another to sell it, or where he signs his name as a witness to the conveyance, or
In Convert v. F. Gertehen et al., 2 Maddox, 40, an infant a few months before he became of age, obtained a portion of his stock by transfer from his trustees, his brother representing to them that they ran no risk in doing so : on a bill filed to compel re-payment by the trustees, held that the concealment of his infancy, under the circumstances, was a fraud and precluded him or his assigns from calling for a re-payment. The Vice Chancellor, in his Opinion, referred to Marlow v. Pitfield, 1 P. Wms, 558, where it was determined that if an infant borrow money and apply it in payment for necessaries, though at Law he is not liable to the lender for the money, yet in Equity the lender stands in the place of the creditor who was paid for the necessaries, and may recover there, as the other might have done at Law.
In Watts v. Creswell, 9 Viner, 415, a tenant for life borrowed money, and Ms son who was next in remainder and an infant, was a witness to the mortgage deed. The mortgagee was relieved on the ground of fraud in the infant, by not giving notice of his title, Lord Cowper saying that if an infant is old and cunning enough to contrive and carry bn a fraud, he ought to make satisfaction for it. * (2 Eq. Ab. 515.)
In Savage v. Foster, 9 Mod. 35, (citing from the case in Maddox,) the Court held that, in the case of fraud, infancy or coverture shall be no excuse, and the Court not only recognized the'case of Watts v. Creswell, (supra,) but also relied on Clerk v. Bedford, 13 Vin. Ab. 536-7, in which case Clerk, an
There is a case in Comyn’s Digest, 294, title Chancery, (I cite from Reeves’ Domestic Relations, p. 260,) which shows that where an infant has entered into an agreement with a fraudulent intent to derive an advantage to himself by not fulfilling his engagement, he may be compelled, in Chancery, to perform it. As where a father was about to make a settlement of £1000 out of the estate which by the law would descend to an infant, upon the younger son, the infant promised the father that if he would desist from making the settlement, he would give to the younger son £1000, therefore the father desisted from making the settlement. The infant refused to fulfil Ms promise, relying upon his infancy. But Chancery would not suffer this to avail, and compelled him to pay the younger son the £1000.
In Overton v. Banister, 3 Hare, 503, payment by a trustee to an infant cestui que trust, nineteen years of age, on the false representation by herself and her parents, that she had attained the age of twenty-one, held* to be a discharge to the trustee for the sum so paid. (Adams’ Equity, 116.)
These authorities are sufficient to show that the fraudulent acts, concealments or representations of infants, when made or done with a view to deceive and defraud others, will be as binding upon them as upon an adult, and their contracts will be enforced against them.
In this case, the infant not only represented Mmself to be of age, but there were other circumstances inducing that belief. He appears to have had no guardian ; was trafficking and selling his lands, as if he was a major. From the statement of McWilliams to Nettles, it appears that the Court had settled with him, meaning, I presume, that he had a final settlement in
But it is not absolutely necessary that we should decide conclusively upon this point. The defendant is not in a condition to set up a disaErmance by the infant. He holds under resale of the infant, but this was made before his age, as must be presumed until the contrary is proved, unless such presumption was rebutted by considerable lapse of time between the sales.
Further he has not offered to repay the money which the infant received in consideration for the sale. In Cummings v. Powell, 8 Tex. R. 93, it was stated, in effect, that an infant on attaining age could not claim a disaErmance of the sale of lands made by him during infancy, without refunding the purchase money ; that such was the rule under the laws of Spain, (Febrero, Vol. 5, p. 379,) and it had received the sanction of Courts eminent for their wisdom and authority ; and several authorities were cited in support of the proposition. In addition to these may be cited Hill v. Anderson, 5 Smedes & Marshall, 216 ; and Smith v. Evans. 5 Humphreys, 70. In this latter case the complainant, after attaining majority, filed a bill to disaErm a conveyance of lands made, and the con sideration of which he had received, during infancy. The Court decreed the disaErmance, but' directed the consideration money and interest to be refunded. Chancellor Kent, in his Commentaries, vol. 2, p. 240, aErms the rule, that if an infant avoids an executed contract when he comes of age, on the ground of infancy, he must restore the consideration which he had received. See also to the same effect Hullyer v. Bennet, 3 Edwards’ Chan. 222.
The plaintiff stood in no fiduciary relation to the infant
There is no error in the judgment and it is ordered that the same be affirmed.
Judgment affirmed.