Voorhies v. Voorhies

24 Barb. 150 | N.Y. Sup. Ct. | 1857

Birdseye, J.

The conveyances made by the plaintiff during his infancy were merely voidable, not void. Such is now the decided weight of authority. (See Bool v. Mix, 17 Wend. 119 ; Dominick v. Michael, 4 Sandf. 418; 1 Parsons on Con. 243, 4, note e; 275, n. l.) It is also clear that before suit can be brought for the recovery of the possession of lands "conveyed in infancy, the party must make an entry upon the lands and execute a second deed to a third person, or do some other act of equal notoriety in disaffirmance of the first deed, such as demanding possession or giving notice of an intention not to be bound by the first deed, or an action cannot be maintained, (Bool v. Mix, supra. Dominick v. Michael, 4 Sandf. 420,1.) In the latter case it was said, as seems to be clearly correct upon principle, that under the present system of pleading this act of disaffirmance must be averred, and is necessary to be proved. I think the want of this allegation makes the complaint fatally defective. The facts stated in the complaint show that the plaintiff’s grantees have been in the undisturbed possession of the lands for upwards of twenty-two years. This possession has been lawful. Though the deeds were subject to avoidance after the plaintiff had attained full age, yet till such avoidance they were valid, and protected his grantees in the occupancy of the lands. It is unjust to permit their grantor to turn that lawful possession into a wrongful one, without any notice or demand whatever. Especially where, as in this case, it is averred that the plaintiff received and still keeps the full consideration for the land, as expressed in his deed, does it seem just that before commencing his action he should in some manner notify his grantee of his intention not to abide by the deed.,, It would seem now settled that the conveyances of an infant'! are not ratified by a bare recognition of them, or a silent aequi-;, escence in them, for any period less than the period of statutory! limitation. (Parsons on Cont. 273, n. i.) The criticism of the' defendants’ counsel, that from the great looseness of the allegations of the complaint respecting the plaintiff’s age, it may well be that the period of limitation had gone by, since the plaintiff became of age, is well taken. But though from the frame of the complaint it may be that the plaintiff had suffered twenty years of his majority to pass by, before bringing suit, still it may be otherwise. That fact is only left in doubt. It does not clearly appear either way. And if it did, I apprehend that it is an objection to be taken advantage of by answer, and not by demurrer.

The second ground of demurrer is also well taken, I think. The infant conveyed one tract of land by one deed to one person, and by a separate deed conveyed another tract to another person : the latter has granted portions of the land purchased by him to five other persons. And the plaintiff noiv brings this action against both of his grantees, and against the five purchasers from one of those grantees. The two conveyances were entirely separate and distinct. There is no warrant for bringing one action to avoid them both together; for the facts as to the ratification or avoidance of them might be equally distinct. Whether or not one action could be maintained against the one grantee and the subsequent purchasers from him, on the ground that the suit is substantially for a redemption of the premises, and that all these parties are entitled to share in the consideration money to be paid back by the plaintiff, and must therefore be before the court, so that their rights to the money may be settled, I am of opinion that inasmuch as the deeds of the infant were distinct, one action cannot be maintained against both grantees to avoid the deeds and recover hack the lands.

[Kings Special Term, March 23, 1857.

Judgment must'be rendered for the defendants on the demurrer, with costs. And, upon the facts of this case, it would seem that no leave to amend should be granted. It would be unavailing. And were not that so, the action is one that deserves no favor at the hands of the court.

Birdseye, Justice.]