Parker v. Baker

1 Cl. Ch. 136 | New York Court of Chancery | 1839

The Vice Chancellor.

There are two grounds of action set forth in the bill of complaint in this cause: 1. The infancy of the complainant at the time the contract was made. 2. Fraud and fraudu- . . lent misrepresentation and concealment on the part of the defendant Baker. The last cause of action is fully denied by the answer of Baker. It seems that the complainant made, while an infant, a contract with the defendant Baker for the purchase of land, and obtained his father’s security upon notes given in payment for such purchase. It was doubtless competent for the complainant, after he became of age, to disaffirm this contract; but the effect such disaffirmance would have upon the father who was security for the infant, is a different and distinct question. The object of this suit is evidently to release both the infant son and the adult father from this contract.- In this litigation, the father does not seem to have taken, part. He has not joined as complainant —he does, not defend the suit at law, when brought ágainst him alone—and when made a defendant in this suit, he takes no steps to take care of his rights, if he has any. He appears to be, if not neutral, at least inactive.

It seems to be the settled doctrine, that infancy is a personal privilege, to be taken advantage of by himself alone. It does not protect his endorsers or his sureties. They, if of a full age, may be made liable, although the infant himself escapes responsibility. This doctrine seems to be recognised in Hartness vs. Thompson, 5 Johns. Rep. 160; Van Bramer vs. Cooper, 2 Johns. Rep. 279; Chandler vs. Parker, 3 Esp. N. P. Rep. 76; Jaffray vs. Fretain, 5 Esp. 47 ; and in Comyn on Contracts. If the infant is so protected in his contracts made during infancy, while his adult co-obligor or surety is liable, the effeet upon this motion is apparent. The injunction must be retained so far as the infant is and dissolved so far as regards proceedings at law against the father. It is not for me to inquire, in-this place, whether the father can successfully defend these suits, or how far a defence that the consideration of his promise has wholly failed, will avail him. It is sufficient that such defences are available at law, and there was no necessity of coming into this court on that ground. If he should have to pay this money while the son escapes, it is probable that he may be subrogated to the rights of his son, in the land agreed to be conveyed. But there is enough in the bill to shew that the injunction should never have issued against the father; and there is enough in the bill and answer to shew that it should be dissolved Baker’s right to proceed against the fathj

Order that the injunction be modified a so far as it restrains the defendant Ba$3$from ceeding at law to collect the notes mentí pleadings, as against the defendant, Aar Costs to abide event.