Conroe v. Birdsall — 1 Johns. Cas. 127

Majority

p. 151

*Conroe against Birdsall.

Headnote

All deeds of an infant which do not take effect by delivery of his hand are merely void, and all such as do take effect by delivery of his hand are voidable.

Though an infant at the time of making a bond, fraudulently alleged that he was of full age, yet the bond was nevertheless, held to be voidable at his election.

This was an action of debt on a bond. The defendant pleaded infancy at the time of executing the bond, to which the plaintiff replied, and issue was taken on that fact. The cause was tried before Mr. Justice Lewis, at the last Duchess circuit, when the defendant supported his plea by proving, that at the time of giving the bond, he was no more than 20 years and some months old. The plaintiff then offered to prove, that at the time of giving the bond and before its execution, and in order to avoid any doubt on this point, the defendant was asked by the plaintiff’s agent who took the bond, whether he was of age, and he alleged that he was of full age; and, that, thereupon the bond was taken. This evidence was objected to, but admitted. A verdict was found

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for the plaintiff, subject to the opinion of the court on the question, whether the evidence was admissible.

■ The ground on which the evidence was contended to be proper was, that the act of the infant in giving the bond) was not absolutely void but voidable only, at his election;: and that he was guilty of deception and- fraud in representing himself to be of age, and ought not to be permitted to avail himself of such fraud; •

S.. Smith, for the plaintiff.

Spencer, for the defendant.

delivered the opinion of the court. There, seems to be some obscurity on the subject of the different acts of an infant, which of them shall be void or voidable only, and perhaps the best rule is to be found in Perkins, (Perk. 12,) which was adopted by the court of king’s bench in Zouch v. Parsons, (3 Burr. 1804,) which is, that all deeds of an infant which do not take effect by delivery of Ms hand are merely void, and. all such-as do take effect by delivery of his hand are voidable. 'The bond in this instance is of the' latter description, and is voidable only at his' election.^[1] The remaining' question to be decided is Whether [*128] *under the circumstances of the case, he ought to be precluded from exercising that election.

We have no doubt of the principle adopted by the judge at the trial, that the disabilities of infants are intended to protect them from injury and imposition, and not to aid them in practices of fraud or collusion ; bu.t on consideration, we are of opinion, that its application to the conduct of the defendant in the case before us, so as to charge him with this debt would tend to endanger all the rights of infants, and ought not to be admitted: The bond in. this, case must be supported in toto, or not at all, and no decision can be found which carries the doctrine of fraud or its effects, in relation to in

(a) (a) Upon the general rule in regard to the voidable character of the deeds , of infants; Gillet v. Stanley, 1 Hill, 121 . Bool v. Mix, 17 Wend. 119 . Jackson v. Todd, 6 Johns. R; 257. Worcester v. Eaton, 13 Mass. R. 371 . Boston Bank v. Chamberlin, 15 id. 220. Dearborn v. Eastman, 4 N. H. R. 441 .

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fants at common law to this extent. The cases cited (2 Eq. Ca. Ah. 489 ; 9 Mod. 38 ; 9 Viner Ab. 415;) by the plaintiff are of a different description, and arose in a court of equity which, under the particular circumstances', was enabled to relieve against the fraud complained of without prejudice to the other rights of the infants, and without invading the general rules of law established in their favor.

Attempts to shake principles which have been sanctioned by the practice of ages ought to be well considered, before they receive the countenance of a court of justice. If an allegation like the present were ever permitted to destroy an infant’s right of avoiding contracts, not one’in a hundred of his contracts, would be placed in his power to avoid, for no-* thing would be easier than to prevail upon the.infant to make a declaration which might be shown as evidence of deliberate imposition on his part, though prompted solely by the person intended to be benefited by it.

When a question of infancy arises, and the infant is alleged to be still in his minority, it may be determined by inspection ; and if his appearance exhibits a sufficient legal criterion to decide the question, it ought also to be considered as sufficient to put a party who may be affected by it, upon inquiry from a different and competent source, and if he disregarded so obvious a precaution, he must submit to the legal consequences of his unguarded conduct.

*Upon the whole we are of opinion, that the evi- [*129] dence was improper, and that a new trial ought to be awarded.

New trial granted.