M'Coon v. Smith — 3 Hill & Den. 147

Majority

p. 147

M’Coon and another vs. Smith

Headnote

An action of ejectment may be maintained against an infant.

The capacity of an infant to do an act for which the law renders him liable, presupposes his ability to confess it; and hence, in ejectment against him, after the plaintiff has shown title, the infant’s entry may be established by his admissions. Per Cowen, J.

But, in ejectment against an infant, though he had aeknowedged he occupied the premises under the plaintiff, and it was shown, moreover, that he had given his note for the rent; held, nevertheless, that he was not estopped from setting up a title in himself adverse to the plaintiff.

Ejectment, tried at the Washington circuit, in October, 1841, before Willaud, C. Judge. The action was brought to recover about thirty acres of land in the town of Granville. On the trial, the defendant showed title in himself and others, and out of the plaintiffs. The latter insisted that the defendant held as their tenant, and that they were therefore entitled to recover possession, the defendant being estopped to question the plaintiff’s title. To make out the tenancy, the plaintiffs relied on the defendant’s admission of it while under the age of twenty-one years, by holding possession under the plaintiffs and giving them his promissory note for rent. The j'udge told the jury, in substance, that if they found the defendant gave the note for the rent, though under age, the relation of landlord and tenant was made out; that though an infant, he was able to contract a tenancy by hiring the premises, and to make a disclaimer. The defendant excepted; and a verdict having been rendered for the plaintiffs, the defendant now moved for a new trial on a bill of exceptions.

J. Holmes, for the defendant.

S. Stevens, for the plaintiffs.

The learned judge considered the defendant’s contract of tenancy as an estoppel, although he was an infant. In this' I think he erred. Even in a suit brought on the contract directly against the infant, he might have avoided its effect completely by showing his non-age. I think he may do the same, a fortiori, where his contract is set up as an estoppel to conclude him in an action of ejectment.

It was said in argument that an infant is liable in ejectment, on the ground of a wrongful possession, and his power to confess is commensurate with his power to do any thing for which he would be liable to an action. I have no doubt the rule is so; and it would have let in an admission of the defendant that he entered on the land, upon the plaintiffs’ showing title in themselves,^[1] But here the title to the land was confessedly in the infant; and a constructive confession by contract amounting to an estoppel is sought to be raised against his assertion of that title. In other words, a confession by contract is alleged against him, by which the effect of his title and right of possession is to be overcome. This is certainly no more than the confession that a contract was- made which he had no right to make; and does not come within the rule.

New trial granted. -

(a) (a) As to the admissibility and effect of confessions by an infant, as evidence against him in civil and criminal proceedings, see Comen & Hill’s Notes to Phil. Ev. 162, 232, 3 ; and Haile v. Lillie, (post, p. 149.)