148 Ky. 138 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
The appellant, Adam Smith, claiming to be the owner and in the possession of a described tract of land, brought this suit against the appellees, Cole 'and Crane, to recover damages for trespass committed by them upon his premises in branding and attempting to convert trees.
The appellees, 'after controverting in their answer the petition, set up that the appellant had sold and conveyed to them the trees that he alleged they were about to appropriate. For reply, the appellant averred that if he did sell the trees, he was an infant under twenty-one years of age at the time of the sale and not bound by his contract.'
The only question' in the case is whether or not the appellant, assuming that he was an infant, is estopped from relying upon this plea to recover damages from appellees for converting the trees.
It appears from the evidence that in May, 1906, Ben Smith, the father of appellant, agreed in writing to and did sell to appellees the trees in question. The contract provided that when the timber was counted, and a general warranty deed made by Smith, the purchase price of the trees should be paid. In September, 1906, the appellees, desiring to have the contract for the purchase of the trees fully executed, prepared a deed for Ben Smith' and his children, including appellant, to sign. The reason assigned for inserting in the deed the names of the children was that the purchasers understood that Smith had made some contract with his children by
This case is controlled by the ruling in the case of County Board of Education v. Hensley, 147 Ky., 441, in which we said:
“It is well settled in this State that where an infant has conveyed land for a reasonable price, representing at the time that he was of age, and has hereby induced the grantee to part with the consideration, the trade being fairly made, and the grantee having no notice that the grantor was under age, the infant will be bound by his deed. And the rule denying relief to the infant Is not restricted in its operations to his misrepresentations ; it applies equally to his fraudulent concealments. * * * * "When one deals with an infant, knowing him to be an infant, the latter is not estopped from relying upon his infancy in avoidance of the contract; but when an infant by reason of his personal appearance, family ¡surroundings, and business activities, coupled with a*140 misrepresentation or fraudulent concealment, leads one •who deals with him, in good faith, and not knowing that he is an infant, to believe that he is of age, he will be estopped from maintaining am action to -avoid his executed contract. When he comes into equity seeking relief, he must come with clean hands. The privilege of infancy is a shield for the protection of the infant, and not a weapon of attack; nor is it to be used as a means of defrauding others.
Wherefore the judgment of the lower court dismissing the petition of appellant is affirmed.