7 Ind. 398 | Ind. | 1856
This was a bill in equity, filed on the 4th of December, 1847, by Joseph and Samuel Laycock, against John Pitcher and others. The object of the suit was to quiet the complainants’ title to certain real estate described in the bill. The material facts of the case are these:
The land in contest was patented to one Samuel R. Marrs, who died in 1825, leaving Mary Marrs his widow, and the following named children and heirs at law, viz., Elizabeth Marrs, Hannah Marrs and Samuel R. Moats, jr. These children, at their father’s death, were all minors. Elizabeth intermarried with John Blair, and Hannah with Joel Ma/rtin. Elizabeth died soon after her marriage. After she died, and on the 24th of November, 1833, Mary Marrs, the widow, Samuel R. Marrs, jr.,'- Hannah Martin,
John Pitcher and Samuel G. Lilleston answered the bill. All the McLanes, except Anna, being infants, answered by guardian ad litem. The other defendants were defaulted. Upon final hearing, the Court decreed that the complainants were the owners in fee of the undivided five-sixths of said land; dismissed the bill as to Lilleston and the McLanes; and enjoined the other defendants from molesting the complainants in their title to, and enjoyment of, the premises.
Elizabeth Blair, it appears, died before the execution of the deed to Bright. At her death she was the owner in fee of one-third of the land. By the law regulating descents then in force, one-half of that share descended to her mother, Mcvry Mans, and the other half to her brother and sister, the said Samuel and Hannah. Mary Marrs being thus the absolute owner of one-sixth of the entire property, her conveyance to Bright vested in him that which had descended to her, without any subsequent right of avoidance by the grantors, or either of them. Hence, the decree proceeds upon the ground that the deed of 1833 was, so far as it included five-sixths of the estate, avoided, but that as to the one-sixth it was irrevocable.
When Hamah and Samuel conveyed to Bright, they were, no doubt, infants. That conveyance, however, was not absolutely void. It was merely voidable. Infancy is a personal privilege, and can be taken advantage of only by the infant after he arrives at years of maturity. He must do some act in avoidance of his deed, before a per
As a general rule, if a person out of possession convey land held adversely, the conveyance is void, on the ground of maintenance. 6 Blackf. 99.—4 Ind. R. 164. But does this principle apply to the case under consideration ? In Jackson v. Burchin, 14 Johns. R. 124, the Court, referring to the ancient law, which required the entry of an infant, after he became of age, to avoid a feoffment, say, “ If he has given livery of seizin, he must do an act of equal notoriety to disaffirm the first act; he must enter on the land and make known his dissent. If he has conveyed by bargain and sale, then a second deed by bargain and sale will be equally solemn and notorious in disaffirmance of the first.” The same principle is held in Jackson v. Carpenter, 11 Johns. R. 539. There it is said that the doctrine requiring an actual entry to avoid a feoffment and livery made by an infant, does not apply to a bargain and sale. In Tucker v. Moreland, 10 Peters 73, judge Story refers to the cases in Johnson, and says, “ The Court proceed upon principles which are in perfect coincidence with the common law, and are entirely satisfactory. It would seem, not only from principle, but authority, that the infant can manifest dissent in the same way and manner by which he first assented to convey. We know of no principle or authority that contradicts this doctrine. It seems founded in good sense, and follows out the principle of notoriety of disaffirmance in the case of a feoffment by an entry; that is, by an act of equal notoriety and solemnity with the original act.” Jackson v. Burchin,
But the objection of non-entry, had it been well taken, would not avail the appellants, so far as Hcmnah’s title is concerned, because she actually entered upon the premises, and while there delivered a conveyance to the complainants.
The next inquiry relates to the deed of Samuel R. Ma/rrs, jr., executed on the 12th of April, 1840. By the appellants, an inquiry is raised as to whether he was of full age when that deed was made. The proof is that he was born in 1819. This, it must be conceded, leaves it uncertain whether he was of mature age when the complainants received their title. But upon whom rested the onus of proving the exact age of Samuel R. Ma/rrs, jr., at the date of that title? The presumption of infancy is never indulged. As a ground of relief, it must be shown, and of defence, be either pleaded or given in evidence. This rule is well settled, and plainly relates to the present inquiry. Here the complainants were bound to prove the nonage of their grantor, when he executed the deed to Bright, because such proof was essential as a ground of relief. Still, it was plainly competent for them to rest then-case on the presumption that he was not an infant when they received his conveyance. It was for the defence to repel that presumption. We must, therefore, in the absence of any direct proof on the subject, intend that Samuel R. Marrs, jr., was an adult when he made his deed to the complainants.
Again, it is insisted that though infants may rescind their conveyances of land, still “they can not rescind in part, so as to take back the land and still retain the purchase-money.” In support of this doctrine, we are referred to 1 American Leading Cases, 261, where it is said, “ When an infant goes into chancery after age to set aside his conveyance, he must offer in his bill to restore the purchase-money.” This may be correct. It is not, however, applicable to the case before us. When he invokes the aid of a Court of equity, he may be required to do equity; still, he has the right to disaffirm without seeking the aid of any Court. The object of the present suit is not to invalidate Brights deed, but merely to quiet the complainants’ title to five-sixths of the land. Their bill assumes that the deeds of 1839 and 1840 annulled that of 1833, so far as they claim an interest in the premises; and the decree recognizes the disaffirmance by the Marrs’ heirs
It is said that the Circuit Court erred by its failure to decree in favor of the defendants for improvements made on the land; but in looking into the pleadings and proofs, we perceive nothing sufficiently definite to authorize such allowance.
The decree is affirmed with costs.