Bool v. Mix — 17 Wend. 119

Majority

p. 70

Bool and wife vs. Mix.

Headnote

A devise to two daughters of land, “ to he equally divided between them, share and share alike, and to be to them for and during their natural life ; and after their death, then to he to their and each of their children, and to be divided between them share and share alike,” gives life estates to the daughters with remainders to their respective children as tenants in common—the grand-children taking per stirpes and not per capita.

Whether the grand-children took an estate in fee or for life only, quere—an intimation that they took in fee, as found in the case of Jackson v. Luquere, 5 Cowen 221, questioned,^[1]

A partition made by the daughters is not obligatory upon their children.

A deed of real estate executed by a feme covert, in conjunction with her husband, acknowledged by her in the form prescribed by law, is valid; it seems, that the common law doctrine, that a woman during coverture can not alien her lands by deed, never prevailed in this state.^[2]

Where the party is an infant, as well as a feme covert, the disability arising from infancy remains, although she execute and acknowledge a deed in the 'form prescribed by statute.

A deed of bargain and sale, made by an infant, is like a feoffment with livery of seizin, voidable only, and not absolutely void ¡ and it seems, that the rule is universal, that all deeds or instruments under seal executed by an infant are voidable only, with the single exception of those which delegate a naked authority ; they are void.^[3]

A deed of lands executed by an infant can not be avoided until he come of age, though he may enter and take the profits in the mean time ; hut it seems, a sale and manual delivery of chattels by an infant may be avoided while under age.

Before suit brought for the recovery of the possession of lands conveyed in infancy, the party must make an entry upon the land 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 he bound by the first deed, or an action can not be sustained.

If there be a feoffment with livery, it may he avoided by entry or by writ ium fuit infra cetatem. If a deed of bargain and sale be executed, it may he avoided by another deed of bargain and sale made to a third person without entry, in case the land be vacant and uncultivated; hut in all other cases there must be an actual entry, for the express purpose of disaffirming the deed.

If, when the second deed he executed, the land be holden adversely to the infant, it seems that the second deed will not amount to a revocation of the first conveyance.

Whether the deed of an infant can he affirmed by his mere silence or omission to disaffirm it for a period of time after he comes of age, quere.

This was an action of ejectment, tried at the Kings circuit in October, 1833, before the Hon. Ogden Edwards, one of the circuit judges.

The plaintiffs, Henry W. Bool and Sarah his wife, in right of the plaintiff Sarah, claimed to recover a portion of the premises in question under a devise, in the will of Aert Middagh, executed on the 7th January, 1777, in these words: “And the remainder of my land which joins the-acre and a half before mentioned, I give unto my other two daughters, Margaretta and Magdalena, to be equally divided between them, share and share alike, and to be to them for and during their natural life; and after their death, then to be to their and each of their children, and to be divided between them, share and share alike.” The premises thus devised contain about six and a half acres of land, situate in the now city of Brooklyn. After the death of the testator,

p. 71

his daughters, Margarctta and Magdalena entered into possession, and on the 18th October, 1793, made partition of the premises between themselves, whereby the noitherly half was alloted to Magdalena, and the southerly half to Murguretta; they executed deeds to each other accordingly, and during their respective lives held the property in severalty, according [121] to such partition. The premises in question are part of the northerly half released to Magdalena. Margaretti married George Moore, and had four children, viz., Sarah, one of the plaintiffs, Elisabeth, the wife of T. Hunt, and two sons named Alexander and George, both of whom were supposed to have been lost at sea near 40 years previous to the trial. Mtrgaretta died in 1820, and Magdalena in 1825. Sarah, the daughter of Margaretta, married Joseph Caldwell, and on the 12th April, 1794, during the lifetime of her mother, united with her husband in a deed of bargain and sale, conveying all her interest in the six and a half acres to Frederick Mitchell; which deed was, on the day of its date, duly acknowledged before a master in chancery. At the date of this deed, Sarah had not quite attained the age of nineteen years; Caldwell, her husband, died in 1802 or 1803; she remained a widow until 1830, when she married Bool, her present husband. In 1804, whilst a widow, she was told that the deed executed by her to Mitchell was invalid, by reason of her infancy. During the same time also, she was desired by the widow of Mitchell to release her interest in the property, which she declined to do, saying, “ what she had done, she had done; she had lived without it; it might be good for her son after her death.” She then had a son living. Mrs. Mitchell at this time talked of selling the property, and told the plaintiff Sarah that the report of her being under age at the execution of the deed to her husband, was a difficulty in the way of a sale. In 1809, the administratrix of Frederick Mitchell sold the property by virtue of a surrogate’s order to Samuel Jackson and others, under whom the defendant claims. Since the death of her mother, the plaintiff Sarah has resided chiefly in the city of New York. Besides the plaintiff Sarah and her sister Elizabeth, there is a daughter of Magdalena living and several other person’s descendant of Aert Middagh, the testator. This suit was commenced in 1331, no act having been previously done to avoid the deed to Mitchell. The judge charged the jury that the defendant was entitled to a verdict. and the jury accordingly found their verdict. The plaintiffs [122] ask for a new trial,

W. Silliman and D. B. Ogden, for the plaintiffs.

In Jackson v. Luquere (5 Cowen 221), in which this court passed upon the will now under consideration, and upon the partition which took place between the daughters of the testator, it was held that the partition did not affect the grand-children of the testator, and that on the death of their mothers they took the premises in fee. The only question therefore in the case is upon the deed to Mitchell, executed in 1794, when the plaintiff Sarah, was within the age of 21. In respect to which, the counsel contended that the deed was absolutely void, being a deed of bargain and sale, and not a feoffment with livery. Such a deed is only operative by force of the statute of uses when made by a person of full age (1 R. L. 74, § 5), and consequently when executed by an infant is void. In support of which positions, they cited 10 Peters, 70; 2 Inst. 673, and 14 Johns. R. 127, where Chief Justice Spencer intimates a doubt whether an infant can convey by bargain and sale; and now by statute (1 R S. 719, § 10) the power of infants to alien their lands is expressly taken away. In Louch v. Parsons (3 Burr. 1794), a lease and release of mortgaged premises executed by an infant was held not to be void; but that was a common law conveyance and not dependant like a bargain and sale upon the statute to render it operative. Lord Mansfield, speaking of the delivery of the deed in that case, meant a common law deed. Besides, the deed was void, on the

p. 72

ground that the plaintiff Sarah, at the execution thereof, was a feme covert. The statute authorizing an acknowledgment of deeds by femes covert, does not apply to infants. At common law, the deed of a feme covert is absolutely void. And again, the consideration paid belonged to her husband; she had no semblance of benefit, and in such cases the deeds of infants are absolutely void. But if the deed was voidable only, how is it to be avoided l It may be by dissent, entry, suit or plea, as the case may require (2 Kent's [123] Comm. 236; Cro. Car. 303; Comyn’s Dig. tit. Enfant, c. 3, 5, 9, 11, and dum ruit infra ceíatem A.) An infant may avoid a deed obtained from him during infancy by executing a second deed after he comes of age, or may bring his suit, and that without previous entry (11 Johns. R. 539; 14 id. 127). The party here could not execute a second deed, whilst possession was held under the first deed. She brought her suit, which is as solemn an act as executing a deed, and it is no objection that her husband unites with her in it, although infancy is a personal privilege. The objection that no one but the infant or his legal representatives can avoid his deed, applies only to strangers or third persons—those who have no interest in the matter. The suit also was brought within a reasonable time after the plaintiff Sarah became entitled to the possession. Her mother died in 1820, and the suit was commenced in 1831. A suit at any time before the statute of limitations attaches, is in season (2 Kent's Comm. 237, 5 Hammond's R. 251; 11 Johns. R. 539; 14 id. 127). It can not be said that here has been a confirmation. Previous to 1809, the plaintiff Sarah, on application, expressly refused to confirm the deed executed by her in infancy. Silence, or mere omission to enforee a claim, is no evidence of confirmation; it can only be inferred from acts done, and those of such an unequivocal character as to leave no doubt of the intent to confirm (10 Peters, 70). The doctrine that a party is bound to restore the consideration which he has received on avoiding a deed for infancy, is of modern origin, and can not be supported on principle. The first case in which it is broached is found in 15 Mass. R. 359 . Nothing of the kind is intimated in Johns. R. 539, or 14 id. 127. If the property is taken back on the ground of infancy, an action no doubt will lie for the consideration paid, but there is no pretence for the position that the property must be restored before suit brought; nor is it necessary that the deed should be avoided before suit brought for the recovery of the possession, as otherwise no right of possession would be shown. It was said on the other side that ihe defendant being rightfully in possession, could not be treated as a [124] trespasser and subjected to the payment of mesne profits. But why not?

On proving the infancy, the deed is shown to have been voidab initio, and the defendant always a wrong doer, and of course he must respond in damages, the same as a plaintiff must pay costs who is defeated in an action on a bond by a plea of infancy. Besides, the recovery in ejectment is evidence only of the title, and not of the time during which the defendant enjoyed the mesne profits (2 R. S. 311, § 48).

P. W. Radclijf and S. P. Staples, for the plaintiff,

insisted that the devise in the will of the testator did not pass an estate in fee to the children of Margaretta and Magdalena, but only an estate for life, leaving the fee to descend to the heirs at law. In support of this position they adverted to the various devises of the will to show the intention of the testator, and adduced many authorities. They conceded that in the opinion delivered in the case of Jackson v. Luquere (5 Cowen, 221), it was said that upon the death of either of the daughters of the testator, the portion of the estate of which the daughter so dying was seized, as a tenant in common for life, became vested in her children as tenants in common in fee ; but they insisied that the quantity of the estate of the grand-children of the testator was not a point in judgment in that case, that the opinion in that respect was obiter

p. 73

and. could not have been fully considered, as it is in direct conflict with an opinion subsequently pronounced by the same judge, in 7 Cowen, 79. They next insisted that the devise in the will of the testator created an estate for life in his daughters Margaretta and Magdalena, as tenants in common, and that their respective children took per stirpes also as such tenants, and not per capita ; and that this point was distinctly decided in Jackson v.LuqU're. In respect to the deed from the plaintiff Sarah and her husband to Mitchell, they insisted that it was not void, but merely voidable; and in support of this position relied upon the case of Zouch v. Parsons, 3 Burr. 1594, and 1 Wm. Black. S. C., also 14 Mass. R. 462 , 7 Cowen, 180, and 9 id. 626. And being voidable, they contended that the plaintiff Sarah ought to have taken measures to avoid it within a reasonable time after she acquired [125] the legal capacity to do so, which they insisted she had not done. Her first husband died in 1802, and she remained unmarried until 1830, a period of 28 years, during all which time she slept upon her rights. By the death of her mother, her right of entry became perfect in 1820, and still she took no steps to avoid the deed until 1831. Under these circumstances, a confirmation of the act of her infancy, they insisted, might justly be inferred against her (2 Kent's Comm. 237). Six months is allowed a party in chancery, after he arrives at age, to show cause against a decree made against him whilst an infant (3 Kent's Com. 245). Application to set aside a sale by a trustee must be made within a reasonable time (4 Cowen, 743), and in every instance of a contract voidable only by an infant on coming of age, he is bound to give notice of disaffirmance within a reasonable time (8 Taunton, 35, 508). So where an election was given to take a lease in a reasonable time, it was held that the delay of a year was unreasonable, and that the party had forfeited his right (2 T. R. 436). At all events, twenty years in analogy to the statute of limitations barring a recovery of real estate, should be considered a reasonable time within which the deed should be disaffirmed (11 Johns. R. 541; 14 id. 127; 4 Cowen, 743). A voidable deed must be disaffirmed by an act equally solemn as the first conveyance (2 Kent's Comm. 237; 10 Peters, 71). In 14 Johns. R. 127, Chief Justice Spencer says, if the conveyance was by bargain and sale, a second deed of bargain and sale will be equally solemn and notorious in disaffirmance of the first deed; and though he held in that case that an entry on the premises was not necessary, he so held merely because the premises were situated in a wilderness. In Roberts v. Wiggin (1 N. Hamp. R. 73), it was held, that if out of possession he should enter, and if in possession should explicitly evince his intention to defeat the conveyance. Although the mother’s estate for life was outstanding the plaintiff, Sarah might have had executed a deed and placed it on record, to guard purchasers from loss, or she might have filed her bill, to retrain those claiming under her deed executed during infancy from conveying, and at all events should have given express notice of her disaffirmance Kline v. Beebe (6 Comm. R. 494), where this subject is [126] very fully discussed and considered. This disaffirmance also should have been by the plaintiff Sarah herself, when she was discovert. Infancy is a personal privilege (2 Kent's Comm. 236). The disaffirmance of an act of this kind involves a question of moral honesty, affecting the conscience of the party, which no other person should be permitted to control. Here the suit is by the husband and wife, afler the lapse of many years, in which the wife had voluntarily acquiesced in the conveyance, and immediately after her marriage this suit is brought. It should be considered not as her act but the act of her husband. A feme covert is not capable of doing any act affecting her real estate, but by deed acknowledged in the form prescribed by statute for the conveya.'.ce of real estate by femes covert. If the deed in this case was not void, but merely voidable, it is manifest that some effect

p. 74

ual act of disaffirmance must be done, or manifest injustice will accrue to the defendant, who is rightfully in possession, until the deed is avoided. How can he, by an action of ejectment, be treated as a trespasser and subjected to the payment of mesne profits ? Besides, if the deed may be avoided on the ground of infancy, the equivalent originally given for it should be restored, which in this case has not been done (7 Johns. R. 87; 7 Cowen, 182; 15 Mass. R. 359 ; 2 Paige, 191; 1 Edwards’ R. 303). In answer to the objection that the deed was void on the ground that the plaintiff Sarah was a feme covert at its execution, as well as under age, it was said that the statute authorizing the acknowledgments of deeds by femes covert made no exception in favor of infants, and that this mode of conveyance had been adopted here instead of the ancient mode of levying a fine, in which a feme covert might join, although not of age.

By the Court,

Some of the questions made on the argument were disposed of when the will of Aert Middagh was before the court in the case of Jackson v. Luquere (5 Cowen, 221). The daughters, Margaretta and Magdalena, severally took life estates in the premises, with remainders to their respective children as tenants in common—the children [127] taking per stirpes, and not per capita. In other words, the children of each daughter, immediately on the death of their mother, were entitled to-an undivided half of the property. The partition made between Margaretta and Magdalena in 1793, was valid for their joint lives, but did not bind those who were entitled to the estates in remainder.

Magdalena died in 1825,'leaving one daughter, Mrs. Starnes, who took an undivided half of the property. Margaretta and her husband, George Moore, had four children, who were entitled to the other undivided half. These remainders were vested in interest, though they were not entitled to the possession of the property until after the termination of the life estate of their mother. On the death of the two sons Alexander and George, their two sisters, Mrs. Hunt and Mrs. Bool, took their interest in the estate as heir a at law (1 Laws of N. Y. Greenl. ed. 207, fourth rule of descents). They were then seized in remainder of an undivided half, or either of an undivided fourth of the property; and became entitled to the possession on the death of their mother in 1820.

The plaintiffs claim an interest in fee under the will, and contend that this question was decided in their favor in the case of Jackson v. Luquere. Mr. Justice Woodworth, who delivered the opinion of the court, remarked, that on the death of either of the daughters of the testator, her portion of the estate “ became vested in her children, as tenants in common in fee.” The question as to what quantity of interest the grand-children of the testator took, was not before the court; the judge was discussing a .different matter; and I have no doubt that the words “ in fee” found their way into the opinion without any intention of passing upon the inquiry whether the grand-children had an estate of inheritance, or for life only. It is impossible to read the will without perceiving that the question is of too grave a character to be disposed of in two words; and it should, I think, be regarded as still open for consideration. But it is unnecessary to decide on it on [128] the present occasion; and as it was only discussed by the counsel for one party, I forbear to express any opinion on the point.

The plaintiff, Sarah Bool, at the time she executed the conveyance to Frederick Mitchell in 1794, was a feme covert and an infant; and the principal questions in the case are, first, whether the deed was void, or only voidable; second, if voidable only, then whether it was necessary for her to do any act to avoid the conveyance before bringing this action; and third, whether the deed has been confirmed by any act or omission on her part since she attained the age of twenty-one years.

p. 75

Although the plaintiff was a feme covert, her husband united with her in the conveyance, and the deed was acknowledged before a master in chancery in the form prescribed by law. The act of 1788, which was in force at the time, is substantially like the present statute in relation to acknowledgments by femes covert (2 Laws of N. Y., Greenl. ed. 99, § 3). At the common law, a woman during coverture could not alien her lands by deed; but she might do so by uniting with her husband in levying a fine, or suffering a common recovery, she being examined by the judges in relation to her consent. In this, as well as in most of the other states, an acknowledgment by the wife, or a private examination before some public officer, that the deed was executed freely, and without any fear or compulsion of her husband, has taken the place of the common law modes of assurance by fine and recovery. Our statute does not in terms enable the wife to alien in this manner, nor does it declare her conveyance valid. Negative words only are used. The acknowledgment of a married woman shall not be taken, except in a particular manner, nor shall her estate pass by a conveyance not so acknowledged (1 R. S. 758, § 10). Upon the ordinary rules of construction this would not be deemed an enabling, but a restraining statute. It seems to have been assumed that we had not adopted the common law rule, and that the deed of a feme covert was effectual to pass her interest in lands.

A recurrence to the early colonial laws will shed some light on the peculiar phraseology of the statute. The fourth section of the act of [129] October 30, 1710, provided that all deeds and conveyances, being duly acknowledged and recorded, or the transcript thereof, should be good evidence to all intents and purposes, as if the original were produced and proved in court (3 R. S. App. 5). Nothing was said about acknowledgments by married women. From the act of February 16, 1771 (3 R. S. App. 22), it seems that their acknowledgments have been taken in the same form as though they had been femes sole, and that a doubt had arisen whether such conveyances were valid. This act, after reciting that it had been an ancient practice in the colony to record deeds and conveyances upon the previous acknowledgment of the grantors, confirmed conveyances already made, notwithstanding any pretence that the wife had not been privately examined. “ But for the more solemn conveying and recording of real estates for the future,” it was enacted, that “ no estate of & feme covert shall henceforth pass by her deed, without a previous acknowledgment made by her apart from her husband,” and a certificate was to be made by the officer “ that she had been privately examined, and confessed that she executed the same freely without any fear or compulsion of her husband.” Nearly the same language has been used in all the subsequent laws on the subject. Whether the common law rule in relation to alienations by married woman was ever adopted in this state (15 Johns. R. 109), or if adopted, by what means it was subsequently modified, is not very material to the present inquiry7. The act of 1771, assumed that femes covert might alien by deed, and it prescribed the manner in which their acknowledgments should be taken for the future., There can be no doubt that the deed of the plaintiff, having been duly acknowledged, was as effectual to convey her interest as though she had been a feme sole. Having complied with the requisitions of the statute, the disability resulting from coverture was completely obviated. There was no incapacity to alien her lands in that form.

The infancy of the plaintiff presents a distinct question from that of her coverture. Each disability must be considered by itself, neither can derive any additional force from being coupled with the other (Phillips v. Green, 3 Marsh, Ky. R. 7, and 5 Monroe, 350). The case of Sanford v. McLean (3 Paige, 117), only decides, that the disability arising from infancy remains, although the infant, being also a feme covert, acknowledged the deed in the

p. 76

form prescribed by law. To that doctrine I fully assent. The question then is, whether the deed of an infant be absolutely void, or only voidable. If an infant convey his lands by feoffment with livery of seizin, it has never been doubted that the estate passes. The de'.d is not a nullity, although it may be avoided by the grantor after he attains the age of twenty-one years. The deed executed by the plaintiff was a bargain and sale, and it is insisted that such a conveyance by an infant is utterly void. Perkins says (§ 12), “ All such gifts, grants or deeds made by infants, which do not take effect by delivery of his hand, are void; but all gifts, grants, or deeds made by infants, by matter in deed or in writing, which do take effect by delivery of his hand, are voidable, by himself, by his heirs, and by those who have his estate.” There has been much discussion in the books on the question whether delivery by the infant relates to the deed or conveyance, or to the possession of the land or thing sold. In Zouch v. Parsons (3 Burr. 1794), it was held that a conveyance by lease and release executed by an infant without livery of seizin, was voidable only, not void. Lord Mansfield cites Bro. Abr. to prove that the delivery of a deed can not be void, but only voidable; and he adds, there is no difference in this respect between a feoffment and deeds which convey an interest; the reason is the same. The conveyance by lease and release, as well as that by bargain and sale, derives its operation from the statute of uses. The deed raises a use, to which the statute immediately transfers the possession, or legal seizin of the land. Corporeal investiture is not necessary to the perfection of the title.

In Jackson v. Burchin (14 Johns. R. 124), a doubt was suggested whether a deed of bargain and sale by an infant, was not absolutely void; but the decision turned on another question. The case of Zouch v. Parsons, though it has been questioned in England, has never been overruled; and [131] the principle of that decision has been often recognized in this and other states. In Conroe v. Birdsall ( 1 Johns. Cas. 127 ), it was held that the bond of an infant, as well as other deeds which take effect by delivery of his hand, was only voidable—not absolutely void. In Jackson v. Todd (6 Johns. R. 257), Dunbar, under whom the lessor claimed, was an infant at the time he conveyed, and although the fact is not expressly stated, there can be no doubt that the conveyance was by deed of bargain and sale. It was held that the deed was only voidable, and that the defendant did not stand in such á relation to the title that he could avoid it. In Jackson v. Carpenter (11 Johns. R. 539), the infant had conveyed by deed of bargain and sale, and the judgment proceeds on the ground that the deed was only voidable. In Roof v. Stafford (7 Cowen, 178), Woodworth, J., who delivered the opinion of the court, said he considered it now well settled, that the contracts of an infant, not only such as take effect by his actual delivery of the subject matter (as a feoffment with livery, or a sale and manual delivery of goods), but all his.deeds, whether at the common law, or under the statute of uses; whether relating to real or personal property, are voidable merely, not void. This doctrine was admitted by Chancellor Jones, and denied by no one, when the case was before the court for the corrections of errors (9 Cowen, 626). The rule seems to be universal, that all deeds or instruments under seal, executed by an infant, are voidable only, with the single exception of those which delegate a naked authority; which are void. And even in relation to a power of attorney, Parker, Ch. J., considered it a point of strict law, somewhat incongruous with the general rules affecting the con tracts of infants, and that no satisfactory reason could be at signed for the exception (Whitney v. Dutch, 14 Mass. R. 462 , 3). That a deed of bargain and sale executed by an infant is not void, see also Roberts v. Wiggins, 1 N. Hamp. R. 73; Kline v. Beebe, 6 Conn. R. 494; Hubbard v. Cummings, 1 Greenl. 11; Boston Bank Chamberlain, 15 Mass. R. 220 ; Phillips v. Green.

p. 77

3 Marsh, Ky. R. 7, 5 Monroe, 350; Newl. Ch. Cont. 11; 2 Pothier, 26). Chancellor Kent, says, the doctrine of Zouch v. Parsons, has been recognized, as law in this county, and it is not now to be shaken (2 Kent, 236). I entertain no doubt that the deed was voidable only, and not void.

Was it necessary for the plaintiff to do any act to avoid the deed before bringing this action? The general rule is, that the voidable act of an infant, if it be by matter of record must be avoided by some matter of record, as by writ of error, or audita querela, and these must be prosecuted during his minority, that the infancy may be tried by inspection; but the act in puis of an infant may be avoided by some other act in pais of equal solemnity or notoriety. If there be a feoffment with livery, it may be avoided by entry, which is an act of equal notoriety. It may also be avoided by writ of dum fuit infra oetatem. The deed of an infant can not be avoided until he becomes of age, though he may enter and take the profits in the meantime. But it seems that a sale and manual delivery of chattels by an infant may be avoided while under age (Bac. Ab. Infancy and, Age, I; Com. Dig. Enfant, c. 4, 5, 9; F. N. B. 192; Roof v. Stafford, 7 Cowen, 179; 9 id. 626). Some of the old books say that an infant may avoid his deed by entry before he becomes of age; but that is not the doctrine of the present day. He may enter while within age and take the profits until the time arrives when he has a legal capacity to affirm or disaffirm the deed; but the deed is not rendered utterly void by the entry; it may still be confirmed after he arrives at full age.

The de.d of an infant may sometimes be avoided by plea, but the infancy must be specially pleaded, and can not be given in evidence under non est factum, because it is his deed until it has been avoided (3 Burr. 1805: Bac. Ab. Infancy and Age, 1. pl. 7). The remedy by plea is only applicable in the case of executory contracts, or where the question is presented in such a form that an opportunity to plead the infancy is presented. Where the contract is completely executed, as in the case of a conveyance of real estate, or a sale and manual delivery of chattels an opportunity to plead the infancy can seldom arise, and the deed must be avoided in some other [133] way (Inhab. of Worcester v. Eaton. 13 Mass. R. 375 ).

A deed of bargain and sale executed by an infant may, under certain circumstances, be avoided by another deed of bargain and sale to a third person after he becomes of age—that being an act of the same description and of equal notoriety with the original conveyance (Jackson v. Carpenter, 11 Johns. R. 539; Jackson v. Burchin, 14 id. 124; Tucker v. Moreland, 10 Peters, 58). It was said in Jackson v. Carpenter, that the conveyance of the infant was not attended with all the solemnities of a feoffment and livery, and that it might be defeated by an act of the same description and of equal notoriety. In holding that an entry was not necessary to avoid the deed, stress was laid on the fact that the land was vacant and uncultivated, and an entry would have been useless. In Jurkson v. Burchin, the land was also vacant at the time the second deed was executed, and the court say 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. In Tucker v. Moreland, the infant had never been out of possession. If in these cases the land had been held adversely to the infant, the second deed would, I think, have been void, and could not have amounted to a revocation of the first conveyance. This was admitted in Jackson v. Burchin. See also 13 Mass. R. 375 .

Deeds procured by duress, or executed by persons of unsound mind, stand on nearly the same footing as the deeds of infants. In Thompson v. Leach (Carthew, 435), the court say, there is a difference between a feoffment made propriis manibus of an idiot, and the bare execution of a deed by sealing and delivery thereof, as in cases of surrenders, grants, releases, &c., which have

p. 78

their strength only by executing them, and in which the formality of livery and seizin is not so much regarded in the law and therefore the feoifment is not merely void, but voidable; but surrenders, grants, &c., by an [134] idiot, are void ab initio. This case is also reported in 2 Salk. 427; Comyn. 45, and 1 Ld. Raym. 313. The doctrine that any deed of an infant or person non compos mentis is absolutely void, can not now be maintained. The case of Conroe v. Birdsall, decides that the penal bond of an infant is only voidable, and in such a case there can be no semblance of benefit to the infant apparent on the face of the deed. The case of Thompson v. Leach takes the distinction which will be found in many of the old books, between deeds accompanied with livery, and those which are not followed by any such solemnity—holding the one voidable and the other void. But that is not the doctrine of the present day. It has been fully settled in this country, as we have already seen, that those deeds and conveyances by infants, which derive their operation from the statute of uses, are no less valid than conveyances by feoifment with livery. They vest the title and estate in the grantee; and if he enter under the deed, he has both the legal and actual seizin of the land, which can only be defeating by avoiding the conveyance. If a deed of bargain and sale by an infant stand on the same footing in this respect as a feoifment with livery, I can perceive no possible reason why the infant should not be required to avoid the deed by some act of the same nature and of equal notoriety that would be necessary in the case of a feoifment. In the case under consideration, the land is held under the infant’s deed—the actual and legal seizin have been united. It is a lawful seizin, and I think the tenant can not be regarded as a trespasser and turned out of possession so long as the deed remains in force.

There is only one case in which an infant can avoid a feoffment with livery by action; that is by writ of dum fuit infra cetatam, which sets forth the fact of infancy', and seeks to avoid the deed on that ground (F. N. B. 192). In all other cases he must make an actual entry on the land, for the express purpose of disaffirming the deed. There is also a writ of entry for á person who has conveyed when of unsound mind, called, from the recital in it, dum fuit non compos mentis (F. N. B. 202). This, like the writ of entry by an infant, was devised for the express purpose of enabling [135] the party to avoid the deed by an appropriate action. The cases in this court which have held that no entry was necessary, are put upon the ground that the land was vacant, and that an entry would have been an idle ceremony. But it it otherwise in this case. An entry here, for the purpose of avoiding the deed, -was but an act of justice to the tenant, before treating him as a trespasser and subjecting him to costs and mesne profits.

In The Inhabitants of Worcester v. Eaton ( 13 Mass. R. 375 ), the first deed had been obtained by duress. From the report of the same case in 11 Mass. R. 368 , it will be seen that the grantor afterwards entered upon the premises, claiming and declaring that she entered for the purpose of possessing herself of the land, and enabling herself to make a conveyance; and a second deed was executed while she was on the land. Chief Justice Parker likens it to the deed of an infant, and he says, that until the deed is avoided, no subsequent conveyance by the grantor can be good; the title will remain good to the grantee, by virtue of such deed, until the grantor shall lawfully disaffirm it. He can do it only by entry; but having entered, his subsequent deed, accompanied by proof of facts tending to avoid the first, will convey a title. It was added, that the deed of the tenant (the one obtained by duress) being wholly avoided, he must be considered a disseizor. In Roberts v. Wiggins (1 New Hump. R. 73), it was said, that in general an infant, to avoid his deed, must re-enter on the land and oust the occupant; or, if already in possession,

p. 79

must perform some act explicitly evincing liis intention to defeat the con veyance.

It is unnecessary, on the present occasion, to say that an entry on the land was the only mode in which the deed could be avoided, for the plaintiff, previous to bringing the action, had done no act whatever to disaffirm the conveyance. She had not even demanded possession of the land, or given notice to the tenant that she did not intend to be bound by the deed.

If one who has aiienéd his estate while an infant wishes afterwards to avoid the conveyance, it is imposing no unreasonable burden to require that it shall be done by an entry on the land, or by some other act of equal notoriety; and the avoidance, whatever maybe its form, must precede [136] the bringing of an action to recover possession. Justice to the tenant requires it; and there is no other way in which we can carry out the doctrine that the deed of an infant is voidable only, and not void. Although the title of the tenant may be defeated, yet, so long as the deed remains unrevoked, he has the legal seizin of the land, and can not be used as a trespasser. It is little better than a contradiction in terms, to say that a man who has the rightful possession of lands can he treated as a wrong-doer. In the case under consideration, the deed remained in full force at the time the action was brought; the possession of the defendant was not tortious, and the action of ejectment can not be maintained.

The opinion already expressed renders it unnecessary to inquire whether the deed has been confirmed by any act or omission on the part of the plaintiff since she became of age.

New trial denied.

Cases cited

Conroe v. Birdsall 1 Johns. Cas. 127 N.Y. Sup. Ct. p. 76