Richardson v. Boright

9 Vt. 368 | Vt. | 1837

The opinion of the court was delivered by

Redeield, J.

The question here, in regard to the infancy of defendant, is so much the same with that decided in the case of Bigelow v. Kinney, 3 Vt. Rep. 353, as hardly to admit of any distinction. It was there held that the infant could not avoid the mortgage, and affirm the deed, but the entire contract must stand or lall together. And it was further decided, that if the defendant would avoid the contract, on the .ground of infancy, it was incumbent upon him to give notice of such disaffirmance within some reasonable time after coming of full age, or he would be considered as having ratified it. The same doctrine is held in the cases of Holmes v. Blogg, 8 Taunton, 35. And Kline v. Beebe, 6 Conn. Rep. 494. Indeed it is but the long established doctrine oí the common law. In the case of every act <of an infant, which is merely voidable, he must disaffirm it, on coming of full age, or he will be bound by it, and this must be'done in a reasonable time. It is not contended that the defendant did this. The charge of the court below to the jury was correct, then, upon this point.

In regard to the offer of the defendant to show such a fraud on the part of of plaintiff, as to avoid the contract, we think the court below decided correctly. It did not amount to a total failure of consideration, so as to exonerate defendant from his promise. There were no covenants on the part of plaintiff, whereby the loss could be made the subject of a plea in off-set.

The incumbrance, offered to be shown, was a pre-existing mortgage, which must have been upon record, or it could not affect the defendant, unless he had notice, at the time of the conveyance, in which case he could not now complain. If the deed were upon record, it would be constructive notice to defendant, as well as plaintiff, and it does not appear either of them had notice, in fact. And if the plaintiff had notice, in fact, of the incumbrance, which was upon record, and used no means to prevent the knowledge coming to defendant, he would be guilty of no legal fraud in selling and deeding to defendant, without notifying him of the incumbrance, But the case does not show that plaintiff had suoh notice.

The judgment of the county court is affirmed.