76 Iowa 89 | Iowa | 1888
— I. No exception was taken to the facts found by the referee. His report is set out at length in the abstract. It is not necessary to set it out in detail here. The material facts are in substance, as follows: In September, 1881, Thomas Leacox, the father of the plaintiff, was killed in a railroad accident, through the negligence of the railroad company operating the road upon which he was traveling as a passenger. The defendant was appointed administrator of his estate, and in that capacity he collected three thousand dollars damages from the railroad company. The deceased left no will, and no other property, and the plaintiff was entitled to a distributive share of the money collected by the defendant. The plaintiff was born on the sixteenth day of December, 1864, and became of age on the sixteenth day of December, 1885. In June, 1881, the plaintiff purchased a threshing-machine, and gave his promissory notes therefor. The defendant signed said notes as surety for the plaintiff, and, to indemnify the defendant for becoming surety on the notes, the plaintiff executed to defendant a chattel mortgage upon the machine and other property, in the usual and proper form. In the fall of 1882, without the knowledge or consent of the defendant, the plaintiff sold the machine,
It is provided by section 2238 of the Code that “a minor is bound, not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonáble time after he attains his majority, and restores to the othér party all money or property received by him by virtue of the contract, and remaining within his control at any time after attaining his majority.” This statute was doubtless enacted for the purpose of more clearly defining the rights and obligations of infants, growing out of their contracts other than for necessaries. By the terms of the statute the infant is bound by his contract unless he disaffirms it within a reasonable time after attaining his majority. At common law it was sometimes held that an infant was not bound by his contract unless he ratified it after becoming of full age. In other cases it was held that
■ We think that the referee and the court below drew the correct legal conclusions from the facts found in the case. It is wholly immaterial whether the contract of an infant is executed or executory. He has the right to avoid it. If executed by the payment of money or delivery of property to the infant, he is required by our statute to return such of the property or money as remains under his control after he becomes of age. He is not required to return money or property received from other sources. Much is said in the argument of appellant about the hardship of allowing the plaintiff to wrong the defendant out of seven hundrecj, dollars of money, which was in good faith paid for hi tit. And it is asserted that the privileges of infancy ought to be “used as a shield and not as a sword,” In answer to this it is to be said that where an infant receives property or money during infancy, and consumes and wastes it, to require him to restore the value
II. It is claimed that the disaffirmance was not made within a reasonable time. It appears to have been served on the defendant on the thirty-second day after the plaintiff became of age. No rule on the question can be made applicable to all cases. Each must be determined on its own facts. We think that in this case the time must be held to be reasonable.
III. It is claimed that a probate court has no right nor authority to determine the question in issue between the parties. The district court is a court of general original jurisdiction, and it also has jurisdiction of all matters in probate. An issue was made up by these parties. It was referred to a referee, and tried, and his report was approved and confirmed. As the court had jurisdiction of the subject-matter, the objection is without merit.
Affirmed.