80 Miss. 741 | Miss. | 1902
delivered the opinion of the court.
By the last will and testament of Cynthia R. Shipp, she devised the lands in controversy to John W. Shipp for his life, and the remainder in fee to Mary B. Shipp and others; one-sixth interest therein being devised to Mary B. Shipp. John W. Shipp, the life tenant, deceased on the 18th day of September, 1899; and soon thereafter Mary B. Shipp brought her bill for partition against Mrs. Margaret B. McKee, her co-tenant, and McGrath, who claimed a lien upon said land under
It is said that appellant is barred of any remedy because she could and should, upon coming to the age of 21 years, have filed her bill to remove the cloud from her title created by the execution of the deed made by her while under said age. Under the authority of Fox v. Coon, 64 Miss., 465 (1 So., 629), such suit would lie, yet the appellant is in no legal default by failing to bring such suit. In Wallace v. Latham, 52 Miss., 297, it is said: “It .is well settled that the infant who makes a deed conveying realty during infancy has until such time as will complete the bar of the statute of limitation, afteV the removal of disability, to disaffirm the deed, and that bare recognition or silent acquiescence will not be regarded as confirmation of the sale, unless prolonged for the period required to make the statute of limitations a bar, or under circumstances requiring the party to decide and act as to confirmation or disaffirmance.” In French v. McAndrew, 61 Miss., 192, it is said: “The effect of the disaffirmance by her [a minor] is to render the conveyance void ah initio by relation, and to entitle her to charge the' purchaser for rents during the whole time that he occupied the proDerty, claiming under her deeds. But the defendant by the conveyance acquired the title of Mrs. Hubbard, who was a co-tenant of complainant, and thus became co-tenant with her, and his liabilities and rights are therefore to be tested by the rules governing co-tenants.” And so in the case here Mrs. Margaret B. McKee has acquired the rights of the other
Reversed and remanded.
After the delivery of the foregoing opinion the counsel for appellees filed an elaborate suggestion of error, to which response was made as follows:
delivered the opinion of the court in response to the suggestion of error.
Owing to the great regard we have for any views seriously urged by the learned counsel for appellee, we will make response to the suggestion of error filed in this case. The distinction between disaffirming a contract by a minor and bringing an action at law by a remainderman during the existence of a life estate is, of course, clear; but learned counsel is mistaken in asserting that the American doctrine is that the minor must, in all cases, disaffirm the executed contract in a reasonable time after reaching majority, though that reasonable time be short of the period which would bar the action under the
Learned counsel is also mistaken in saying that there is no evidence showing that Busby was trustee. The recitals in the instruments of record show this with sufficient clearness and distinctness.
Overruled.