Watson v. Peebles

59 So. 881 | Miss. | 1912

Smith, C. J.,

delivered the opinion of the court.

Appellant was not empowered by the decree partially removing her disabilities of minority to receipt for the purchase money of the land sold by her to her brother, nor to cancel, or to authorize the cancellation of the deed of trust securing it; consequently she is entitled to have this deed of trust foreclosed, even though the rights of innocent third parties will lie affected thereby, unless she has been guilty of such fraudulent conduct as will make it inequitable for the court to permit her to do so. There is no pretense that the purchase money was in fact paid, or that she made any representations as to her age to any one, and it does not appear that she authorized the cancellation of the deed of trust with intent thereby to deceive or defraud any one; consequently she is not estopped from enforcing her security, but still has the legal right to do so. Ferguson v. Bobo, 54 Miss. 121; Upshaw v. Gibson, 53 Miss. 344; Brantley v. Wolf, 60 Miss. 420; Ostrander v. Quin, 84 Miss. 230, 36 South. 257, 105 Am. St. Rep. 426; Commander v. Brazil, 88 Miss. 668, 41 South. 497, 9 L. R. A. (N. S.) 1117.

The only evidence from which it is claimed that a fraudulent intent can be inferred is that contained in her answer to the following question propounded to her on direct examination: “Have you any statement to make in regard to your signing such paper, or in regard to any other matter pertinent to this suit?” Her answer was: “I have no statement to make, except that I knew nothing of the nature of the business, as I only did it to help my brother. ’ ’ This evidence falls far short of proof that she had knowingly entered into a scheme to defraud any one. It simply tends to show that she did not realize what she was doing. It may be that in one sense of the word it was wrong for her not to have inquired into the “nature of the business” before signing the instrument;, but legal fraud cannot be predicated of her failure to-do so, since such failure is “unmarked with any element, of deceit or intentional wrong, because the right of disaffirmance is the privilege which the law attaches to the condition of disability, and of this right all men are bound to take notice.” Brantley v. Wolf, 60 Miss. 430.

There is no merit in appellees’ contention that appellant is now estopped to repudiate the cancellation of this deed of trust on account of her unreasonable delay, for the rule in this state is that, in the absence of peculiar circumstances rendering such delay unreasonable, a minor has the full period of the statute of limitations-after attaining majority within which to repudiate a contract made during infancy. Mere silence and inertness does not constitute a ratification of such a contract. Wallace v. Latham, 52 Miss. 291; Thompson v. Strickland, 52 Miss. 574; Brantley v. Wolf, 60 Miss. 427; Allen v. Poole, 54 Miss. 330.

Appellant is not entitled to have the deed executed by her to her brother canceled, for she had the power under the decree partially removing her disabilities of minority to execute it; nor is she entitled to have the deed of trust executed by her brothér to appellees canceled, for he had the right to execute this deed of trust; but she is entitled to a prior lien on the property, and to have the deed of trust executed to her by her brother to secure the purchase money of the land foreclosed, and the proceeds derived from the sale of the land applied, so far as may be necessary, to the payment of the amount due her by her brother on this purchase money.

The decree of the court below is reversed, and the cause remanded.

Reversed and remanded.