Philpot v. Bingham

55 Ala. 435 | Ala. | 1876

STONE, J. —

Ever since the leading case of Zouch \v. Parsons, 3 Burr. 1794, there has been a growing disposition to treat almost all contracts made by infants as voidable rather than void. The principles of that decision have received a very steady and cheerful support on this side of the Atlantic. The declared rule is, that contracts of an infant, causpd by his necessities, or manifestly for his advantage, are valid and binding, while those manifestly to his hurt are void. Contracts falling between these classes are voidable. Eelaxation of ancient rigor has had the effect of placing many transactions, formerly adjudged void, in the more conservative category of voidable. — See 3 Washb. Real Prop. 559 et seq.; 2 Kent’s Com. 234, in margin; 1 Amer. Leading Cases, 5th ed. 242 et seq. in margin; 2 Greenl. Ev. § 365 et seq.; Tyler on Infancy, 41; Tucker v. Moreland, 10 Pet. 58, 65; Boody v. McKenney, (10 Shep.) 23 Maine, 517. This question has been several times before this court, and we have uniformly followed the modern rule above expressed. — Fant v. Cathcart, 8 Ala. 725; Elliott v. Horn, 10 Ala. 348; Thomason v. Boyd, 13 Ala. 419; West v. Penny, 16 Ala. 186; Weaver v. Jones, 24 Ala. 420; Manning v. Johnson, 26 Ala. 446; Freeman v. Bradford, 5 Por. 270; Slaughter v. Cunningham, 24 Ala. 260; Derrick v. Kennedy, 4 Por. 41; Clark v. Goddard, 39 Ala. 164.

It is declared, in the adjudged cases, and in the elementary books, that a power of attorney to sell lands, a warrant of attorney, or any other creation of an attorney, by an infant, is absolutely void. — Lawrence v. McArter, 10 Ohio, 38, 42; Pyle v. Cravens, 4 Littell, 17, 21; Bennett v. Davies, 6 Cow. 393; Fonda v. Van Horne, 15 Wend. 636; Knox v. Flack, 22 Penn. 33; Tyler on Infancy, 46-7; 1 Amer. Lead. Cases, 5th ed., 247 in margin; Saunders v. Mann, 1 H. Bla. 75; Tucker v. Moreland, 10 Pet. 58, 68; 2 Kent’s Com., m. p. 235. So, in Alabama, it has been said, “ an infant can not appoint an agent.” — Ware v. Cartledge, 24 Ala. 628. In Weaver v. Jones, 24 Ala. 424, C. J. Chilton said, “The better _opinion, as maintained by the modern decisions, is, that an infant’s contracts are none of them (with, perhaps, one exception) absolutely void by reason of non-age; that is to say, the infant may ratify them, after he arrives at the age of legal majority.” Ch. J. Chtt.toN refers to Parsons on Contracts in support of this proposition. Looking into that work, * 244, it is clear that he means to except from the operation of the general rule, laid down by him, those contracts of an infant, by which he attempts to create an attorney or agency.

From such an array of authorities, sanctioned as the principle has been by this court, we do not feel at liberty to depart, although the argument in favor of the exception is rather specious than solid. We therefore hold, that the power of attorney, under which the plaintiff’s land was sold, made, as it appears to have been, while he was an infant, was and is what the law denominates void. If void, then no title, even inchoate, passed thereby; and th¿ defense to the action must rest entirely on grounds other than and independent of the power of attorney and deed. Thus circumscribed, the defendant (appellee here) has failed to show any defense to the plaintiff’s claim to an undivided half interest-in the land sued for. — See Boody v. McKenny, 23 Maine, 517; Haney v. Hobson, 53 Maine, 453; Cresinger v. Welch, 15 Ohio, 156.

2. The present action was brought to recover only an “ undivided half interest” in the lot sued for. The defendant interposed a single plea — that he was “not guilty of unlawfully withholding the premises claimed by the plaintiff.” “ Such plea is an admission by the defendant that he is in possession of the premises sued for.” — Rev. Code, §2614. Tbe defendant, tben, admitted by bis plea that be was in possession of tbe undivided balf interest of said lot claimed by the plaintiff. Under section 2602 of tbe Revised Code, tbe defendant filed a suggestion, “ that be and those whose possession be bad, for three years next before tbe commencement of said suit, bad adverse possession of the real estate mentioned in said complaint, ana made permanent improvements thereon,” &c. This was a declaration, of record, that defendant was in adverse possession of tbe undivided half-interest sued for. Another fact: tbe entire property in controversy was first conveyed to Miss Stringfellow, and subsequently conveyed by her to defendant in entirety, who entered and is occupying under such deed. These acts clearly demonstrate an ouster of plaintiff by defendant, and dispense with tbe necessity of demand by plaintiff, before suit brought, to be let into possession. — 1 Hill. Real Prop. 567, and note 3; Hargrove v. Powell, 2 Dev. & Bat. 97; Tyler on Ejectment, 801-2.

Tbe rulings of tbe Circuit Court are in conflict with tbe views above expressed; and its judgment is reversed, and tbe cause remanded.