46 Ala. 108 | Ala. | 1871
This is an action at law founded on a promissory note, with security,- made by an infant for the purchase-money of a horse. The infant died in possession of the horse before attaining his majority, and the administrator of his estate, who is the appellee in this court, took possession of the horse after his intestate’s death, as a part of his estate, and sold him as such, and converted the proceeds of the sale to the use of the estate which he represented.' The proof also shows that the infant and the vendor of the horse were both warned by the infant’s guardian, who is another person than the administrator, that the horse would not be paid for by the guardian if sold to his ward. It also appeared that the infant owned a pony horse before the purchase of the horse in controversy in this case, and that his estate consisted in one-fourth interest in twenty negro slaves, and four thousand dollars in cash in his guardian’s hands. And when the purchase was made he was above twenty years of age.
Upon these' facts the court was asked by the plaintiff to charge the jury on the trial below, that if they “ find from the evidence, that on the lüth day of September, 1860, the plaintiff sold and delivered a bay horse to R. F. Burns, the defendant’s intestate, and that the note read in evidence was then and there executed by said R. F. Burns and R. E. Perry for the price of said horse; and that at the time of said sale of said horse, said R. F. Burns was under twenty-one years of age and over twenty years of age; and that said R. F. Burns took said horse at the time of the sale, and kept and used said horse until the said R. F. Burns died; and that said R. F. Burns died in the fall of 1860, and under twenty-one years of age ; and that after the death of R. F. Burns, this defendant, as the administrator of said R. F. Burns, knowing all the facts in reference to the giving of said note and the purchase of said horse, and that said note had not been paid, took possession of said horse as such administrator, and sold
Eor a long series of years our distinguished predecessors in this tribunal have treated the contracts of infants, in this State, as voidable, and not as void. — Freeman v. Bradford, 5 Port. 270; Slaughter v. Cunningham, 24 Ala. 260; Manning v. Johnson, 26 Ala. 446 ; Clark & Co. v. Goddard, 39 Ala. 164. But the contract of a minor can be avoided only by himself or his personal representative. It is a personal privilege, and only the person to be protected by it, or his administrator or executor, in such case as he can make a will, can avoid or affirm it. — Jefford v. Ringgold, 6 Ala. 544; Rev. Code, §§ 1910, 1916. And if the administrator or executor of the infant means to avoid or repudiate the contract made by the minor, he must do so in like manner as the minor would be required to do. If he fails to do this, the same rule which applies to a ratification or affirmance by the infant applies to him. 6 Ala. 544, supra. Here the administrator retained possession of the horse after the death of the infant, and sold it as a part of his estate in his hands to be administered. . Such acts would have bound the minor himself as an affirmance or ratification of the contract of sale. And I see no sufficient objection why they should not also bind his representative for like reason as they would bind the minor himself. Such, it seems to me, is the current of our decisions and the dictates of justice. These decisions necessarily become rules of property in this State, and for this reason they should not be departed from. — Manning v. Johnson, 26 Ala. 446 ; Weaver v. Jones, 24 Ala. 420; Baker v. Gregory and Wife, 28 Ala. 546.
The judgment of the court below is reversed, and the cause remanded for a new trial.
