Jackson ex dem. Brayton & Dunham v. Burchin — 14 Johns. 124

Majority

p. 124

Jackson, ex dem. Brayton and Dunham, against Burchin.

ALBANY,

January, 1817.

Headnote

Where an Infant mdnt and aftercoming and^seiis^the game land to B., this is a revocation of the form-tingrat£atdlth¡ vo1dahieedcmy, a person having 444^81?%tint g!4ntaVbyd toe with 4h?™'he wereaféoffmeét Tlthsubsequent livery^iitobava subsequent bargain and sale. subsequentgranexecution of the a°pVriOTnCgrañt grantor rrhen au render Seel Ttiddu,an'd if the never possession, it is Sot an act of where an infant conveys land, a bare admission rmrives^ofnfun alfrmance of his acti

THIS was an action of ejectement for lot No. 37., in the town of Manlius, in the county of Onondaga, which was tried before Mr. Justice Yates, at the Onondaga circuit, in June, 1 ° 1816.

The plaintiff gave in evidence letters patent, dated the 8th oi Jutyi 1790, by which the lot in question was granted to Thomas Featherly, for his services in the revolutionary war, and he, by deed dated the 16th of April, 1785, and acknowledged, first before a judge of the common pleas of the county of Herkimer, and, afterwards, before a judge of the common pleas of the county of Onondaga, for the consideration of 30/., conveyed the same to the lessors of the plaintiff. The defendant claimed under a prior deed from Featherly to Charles Newkirk, dated the 28th of January, 1784, and duly filed, by which, for the ° J J consideration of 7he granted to Newkirk the gratuity or bounty lands, to which he then was, or should or might be, entitled on account of his services in the war: this deed contained a covenant for farther assurances, and a power of attorney to third persons, to convey the land to Newkirk when a patent should be obtained: but it was proved that Featherly, at the time of executing the last mentioned deed, was between 19 and „ 20 years ot age.

Featherly was produced as a witness on the part of the de• " ~ . , , . 1 - _ tendant, who ottered to prove that the witness, before executing tae deed to the lessors of the plaintiff, and after he came °f age? had refused to sell the land to pther persons, because he had already sold it to Newkirk, but the evidence was overruled. The witness then testified that Brayton, one of the lessors, called at his house, and asked him if he had been a soldier and was entitled to land; that the witness replied that he had sold his soldier’s land to Newkirk for 71.; that Brayton offered to indemnify the witness, if he would sell him the land, and that the witness told Brayton, that he understood that he was under age at the time the deed to Newkirk was given, and that it was void; the witriess then went to Brayton’’s house, where the deed to the lessors was executed, and a bond

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given for the consideration; that the lessors afterwards gave the witness a covenant to indemify him against Newkirk. Another witness, on the part of the defendant, testified that he had heard Brayton say, that he had notice of the deed to New-kirk, either (the witness was not certain which) at the time Featherly executed the deed to the lessors, or at the time of his acknowledging it. Declarations of Featherly, at the time of die execution and second acknowledgment of the deed to the lessors, contradictory to his statement on his examination, were given in evidence by the plaintiff. At the time the deed was given to the lessors of the plaintiff, the land was wild and unoccupied, and the first improvements were made in 1806. A witness seated that, on the night before the trial, Brayton had said that Dunham, the other lessor, was dead, and that one Foot was present at the time, but Foot, on being sworn, denied that he had ever heard Brayton, or any other person, say that Dunham was dead.

The judge charged the jury, that in order to give effect to the deed to the lessors of the plaintiff, it was not necessary that tile grantor should have before done any act showing his dissent to the deed to Newkirk, and that notice to the lessors of the deed to Newkirk, at the time it was last acknowledged, and before they had paid the consideration, could not render it fraudulent and void. The judge further charged the jury, that it was their peculiar province to pass upon the credit of witnesses, and he left it to them to say if the -witness, Featherly, was to be believed ; and that if they believed that Featherly, when Brayton first called on him, told him he had sold his land to Newkirk, then they ought to find a verdict for the defendant; otherwise, they should find for the plaintiff. The jury-found a verdict for the plaintiff

The case was submitted to the court without argument.

delivered the opinion of the court. The defendant’s counsel have stated, on the case, several points, which, they insist, must prevent the plaintiff’s recovery:

1. That the execution of the second deed was an act of maintenance in Featherly, unless the first deed had been previously avoided.

2. That no one but the infant himself, or his representatives, privies in Mood, can avoid a conveyance made by an infant.

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3. That the judge overruled legal evidence of affirmance of t-h® first deed by Featherly, after he came of age.

4. That the lessors of the plaintiff had notice of the deed to Newkirk, before their deed was consummated, which rendered the latter deed fraudulent as to Newkirk and those claiming under him.

5. The plaintiff was entitled to recover a moiety only, one of the lessors being dead at the time of the demise; and,

Lastly, that the^statute of limitations barred the recovery.

The case of Jackson v. Carpenter ( 11 Johns. Rep. 539 .) disposes of several of these points. The facts in that case are very similar to the present; there the first deed was executed by the patentee, a soldier in the revolutionary war, in 1784, when he was about nineteen years of age, and the deed to the then lessors was executed in 1796. The deeds in that case, as well as this, enured as deeds of bargain and sale. There had been no entry by the infant after he became of age, to avoid the first deed; and the court held that an entry was not necessary, but that the second deed was an act of sufficient solemnity and notoriety to avoid an antecedent deed of bargain and sale, and that the second deed had not only the effect of avoiding the first, but also of conveying the lands to the grantees.

The ancient law in requiring the entry of an infant, after he became of age, to avoid a feoffment, (4 Cruise’s Dig. 107. s. 29.,) was, undoubtedly, on the principle that it operated on the possession, without any regard to the estate or interest of the feoffor, and that nothing was wanting to make the feoffment good and valid, but possession, which the livery of seisin conferred. Thus it was held, that if an infant made a feoffment, and gave livery of seisin in person, his deed was not void, but voidable; for there must be some act of notoriety to restore the possession equal to that by which he transferred it. (4 Cruise’s Dig. 106. s. 23.)

In the present case, the deed under which the defendant claims, operated as" a deed of bargain and sale. The bargainor, for the consideration of seven pounds, bargained and sold the land to the bargainee, and became, eo instanti, a trustee for, and seized to the use of, the bargainee, and then the statute of uses vested the estate; the bargain first vesting the use, and the statute vesting the possession. And it may well be doubted whether an infant can execute a valid deed, by that species of

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conveyance. (4 Cruise's Dig. 226. s. 42.) Admitting, however, that the deed is not void, but voidable, it would seem, not only on principle, but authority, that the infant can manifest his dissent in the same way and manner by which he first assented to convey. If he has given livery of seisin, he must do an act of equal notoriety to disaffirm the first act; he must enter on the land, and make known his dissent. If he has conveyed by bargain and sale, then a second deed of bargain and sale will be equally solemn and notorious, in disaffirmance of the first. The law does not require idle and non-essential ceremonies; and it would be idle to require an entry on the premises, in 1795, when not only this lot, but the whole country in which it was situated,. was almost a wilderness.

The second deed to the lessors was neither an act of maintenance, nor of fraud, admitting that they knew of the deed to Newkirk. If they knew of that deed, and the circumstances under which it was executed, they knew also that Featherly was not bound by it, and that he was competent to revoke it, and give another deed. I will not say that it might not have been an act of maintenance, had Newkirk been in possession of the lot, claiming and holding under that,deed; but he was not. Perkins (s. 12.) states the law to be that “all gifts, grants, or deeds, made by infants, by matter in deed or writing, which do take effect by delivery of his hand, are voidable by himself, his heirs, and by those who have his estate;” and Lord Mansfield, (3 Burr. 1804,) says this is the true rule; and Shepherd, in his Touchstone, (233.) lays down the same rule; thus admitting, with respect to voidable deeds, that a privy in estate may avoid an infant’s deed.

I perceive no evidence of the affirmance of the first deed by the infant, after he came of age.

There was proof of the death of one of the lessors, and there was also proof contradicting that evidence. The defendant did not make this a point at the time, and the verdict of the jury is general; the plaintiff ought not now to be restricted in his verdict.

It is an entire mistake to suppose the plaintiff barred by the statute of limitations. The defendant’s possession had not been for more than nine years prior to the trial.

Judgment for the plaintiff.-