24 Ind. 385 | Ind. | 1865
This action was brought by Paulina Lingerrman, to recover the possession of certain real estate. The averments are her ownership in fee simple, and that she has been kept out of possession wrongfully. The appellant answers, denying the averments.
The proof was that the plaintiff, being the owner of the real estate described in the complaint, joined with her husband, about seven months before she came to her majority, in the execution of a conveyance of the land to-the Indiana & Illinois Central Railway Company. At the time of signing the instrument, she notified the agent of the company that she could not execute the deed, by reason of her minority. The property was subsequently conveyed' by the company to the defendant. Evidence was also introduced, on the trial, that the plaintiff had given notice to the defendant of her intention to avoid the deed.
The evidence of the minority of the plaintiff, at the time of the execution of the conveyance, was introduced over the objection of the defendant. The objection urged is that the evidence is outside of any issue tendered by the complaint.
It is also insisted that the action cannot be maintained, because there had been no tender of the consideration received by the plaintiff at the time of signing the deed to the company. Each of these objections arises from a misapprehension of the purpose of this suit. The action is not to avoid the deed executed to the railroad company, for that had already been done by the notice she had given to the defendant. The suit was simply to obtain
The exception reserved upon the failure to prove an offer to return the purchase money is not well taken. Where the plaintiff is in the possession of the property, andjcomes into a court of equity, asking to have some cloud removed from her title, she must restore any consideration received from the defendant; she must do equity. But when, * having by her own act avoided the deed, she comes into a court of law, demanding possession of property to which she I holds a perfect title, no equitable conditions can be imposed I upon her by the court. She comes, not invoking the aid * \of the court to remove a cloud from her title, but demand-, ing possession of property, the title to which she has, by her own act, rendered perfect, without assistance from the equitable power of the court. Pitcher et al. v. Laycock et al., 7 Ind. 398.
It is insisted, however, that the deed of an infant cannot be avoided in the hands of a subsequent grantee, who-purchased without notice of the minority of the person executing the conveyance to his grantor. This position can only bo sustained upon the doctrine of estoppel, for the grantor can convey no better title than he holds, and. some act must be done, or there must be some omission, by the minor, after reaching majority, resulting in an injury which would render the avoidance of the conveyance a fraud upon the person in possession under color of title.
There was proof that the railroad company, to whom the appellee conveyed the land in question, had notice both of the minority and marriage of the grantor, and that she then agreed to re-acknowledge the deed upon the completion of the road;, that the road was still unfinished; that she never knew of any contract or offer of sale by the company, nor was she aware of the conveyance, or of even the slight improvements having been placed upon the property, until she gave notice of her intention to avoid the deed, and the suit was brought within a few months after that time. The land was unimproved when conveyed. "We hold that, under these circumstances, she is not precluded from asserting her title to the land, although she resided within four miles of the property for two years after she arrived at full age, and within ten miles thereof up to the time of the trial. ^
The judgment is affirmed, with costs.