A COMPENDIUM, &c. &c. CHAPTER I. AS TO RESTRICTIONS ON THE GENERAL CAPACITY TO 1. As to who are generally incompetent to sell. THE questions who may sell, and who may buy, real estate, may be conveniently discussed, by assuming the existence of a general capacity to enter into the relation of vendor or purchaser; and by then treating of the exceptions to the general rule. Chapter 1. to sell or buy Incapacities to sell or buy, may be considered as of two Incapacities descriptions; 1st, such as depend on some circumstance are personal to the proposed vendor or purchaser, and affecting his general capacity to buy or sell any real estate: general and, 2ndly, such as depend on the relation in which he or relative. stands to the particular property proposed to be sold or bought; or to the party with whom he purposes to deal. (1.) As to incapacities to sell of the 1st description. are generally to sell. [*2] A proposed vendor, although having a good title to, as to who and being the absolute owner of property, and standing incompetent in "no situation of trust towards the proposed purchaser, may yet be under some personal incapacity, which may prevent a sale: that is to say, he may be, 1st, An infant: if so, he can, as a general rule, execute no conveyance Infants. Chapter 1. which will bind, either himself when he comes of age, or his heirs in the event of his dying, either under age, or of full age, but without having (in those cases which admit thereof) confirmed the transaction.(a)[1] (a) 4 Bac. Abr. 360, et seq.; any deed which takes effect by delivery, is, if executed by an infant, voidable only; but letters of attorney, and deeds which delegate a mere power, and convey no interest, are absolutely void; Zouch v. Parsons, 3 Burr. 1794; Anon. v. Handcock, 17 Ves. 383; Allen v. Allen, 2 Dru. & War. 307. [1] Bingham, in his treatise on the law of infancy, concludes, from a review of the cases, that those acts of an infant which are capable of being legally ratified, are voidable only; and the acts which are incapable of being legally ratified, are absolutely void; and he insists, that all the deeds, acts and contracts of an infant, except an account stated, a warrant of attorney, a will of lands, a release as executor, and a conveyance to his guardian, are, in judgment of law, voidable only, and not absolutely void. (Bingham on Infancy, 33.) Kent (2 Kent's Com. 235,) says, that the modern, as well as the ancient cases, are much broader in their exception; though he admits that the tendency of the modern decisions is in favor of the reasonableness and policy of a very liberal extension of the rule that the acts and contracts of infants, should be deemed voidable only. In general, where a contract may be for the benefit, or to the prejudice of an infant, he may avoid it, as well at law as in equity. Where it can never be for his benefit, it is utterly void. (Fonbl. Eq. b. 1, ch. 2, sec. 4.) And in respect to the acts of infants of a more solemn nature, such as deeds, gifts, and grants, Lord Mansfield, in Zouch v. Parsons, 3 Burr. Rep. 1804, held the law to have been truly laid down by Perkins, sec. 12, that "all such gifts, grants, or deeds, made by an infant, which do not take effect by delivery of his hand, are void. But such gifts, grants, or deeds, made by an infant, by matter in deed, or in writing, which take effect by delivery of his own hand, are voidable." This distinction is adhered to by Chancellor Jones, (in Stafford v. Roof, 9 Cowen's Rep. 626,) where he holds that manual delivery was requisite to render the infant's deed of lands or chattels voidable only. Chancellor Kent thinks the modern rule, as now understood, is not quite so precise. He however adds, that the doctrine of the case of Zouch v. Parsons, has been recognized as law in this country, and that it is not now to be shaken. (2 Kent's Com. 236.) In Oliver v. Hendlet, 13 Mass. Rep. 230, the court seemed to think the true rule to be that those acts of an infant are void, which not only apparently, but necessarily operate to his prejudice. In Whitney v. Dutch, 14 Mass. Rep. 462, the same court said, that whenever the act done, may be for the benefit of the infant, it shall not be considered void, but that he shall have his election when he comes of age to affirm or avoid it. And they added, that this is the only clear, and definite proposition which can be extracted from the authorities. In Carrol v. Bird Nor has a court of equity any authority to sell the real estate of an infant under the mere notion that a sale will be beneficial.(b)[2] Chapter I. Estates of, cannot be sold by the court, except under cumstances. may convey ute. But, by statute, in particular cases, infants holding special cir lands in trust, or subject to the debts of the ancestor or But they testator, are enabled to convey under the authority of the under stat Court of Chancery;(c)[3] and in various special cases, fants, or their guardians, are enabled, by statute, to sell and convey land for purposes connected with religion, (d) instruction, (e) or works of public nature.[4] in- and are em statute to (b) Calvert v. Godfrey, 6 Beav. 97; and see Wood v. Patteson, 10 Beav. 541; as to the sale under special circumstances, see Garmstone v. Gaunt, 1 Coll. 577. (c) Vide infra, ch. XIII. and XIX. (d) See, for a list of the Church Building Acts, the preamble to 3 and 4 Vict. c. 60. (e) See 4 and 5 Vict. c. 38; and 6 and 7 Will. IV. c. 90. sall, 1 John. Cas. 127, the court approved of the doctrine of Perkins as it An infant can only avoid an act done of record, pending infancy; otherwise as to acts in pais. An act after twenty-one disavowing or dissenting from a deed delivered during infancy, with equal solemnity with the deed, annuls and avoids the deed. (Breckenbridge v. Ormsby, 1 J. J. Marsh. 252.) A contract was made by a guardian respecting the lands of infants. Their right to declare it void after maturity, was reserved in the contract; after attaining their age, they filed a bill renouncing the contract, and asserting their original rights. Afterward, by our amended bill, they prayed relief under the contract. Held, that their renunciation was a bar to all relief under it. Floyd v. Johnson, 2 Litt. 109. To render a subsequent conveyance, by an infant, after he arrives of age an act of dissent to the prior deed, it must be so inconsistent therewith that both deeds cannot properly stand together. Eagle Fire Ins. Co. v. Lent, 6 Paige, 635. [2] See American Chancery Digest, by Waterman, p. 416. [3] The equity jurisdiction, in this case, is grounded in the statute. 7 Anne, c. 19, which has been re-enacted in this country. See 2 New York Rev. Stat. part 3, Ch. 1, Art. 7. [4] If an infant be a tenant in common, he may make a reasonable partition. (Barrington v. Clarke, 2 Penn. Rep. 115.) His acts as executor, powered by sell for cer tain special purposes. collateral Chapter 1. So an infant can convey under a power simply collaMay exercise teral,(f) but he cannot be empowered, at least as against himself, to contract for the sale of land, or to do any other act which requires an exercise of discretion.[5] power. And may sell under cus kind. But by the custom of gavelkind, an heir at the age of tom of gavel- fifteen, may, for valuable consideration, sell and convey for an estate in possession, lands which he took by descent; the conveyance being by foeffment, and livery of seisin being delivered by him in person.(g) [*3] (f) Sug. Pow. 211, 7th ed. (g) Bac. Abr. pp. 49, 50. This customary foeffment is excepted from 8 and 9 Vict. c. 106, s. 3. at the age of seventeen, will bind him, unless they be acts which would amount to a devastavit. In New York, however, he is delared to be incompetent to act as an executor or administrator. (N. Y. Rev. Stat. vol. 2, p. 69; Ib. 75.) [5] Four persons, of whom two were infants, conveyed real estate to M., in fee. M. mortgaged the whole to the complainants, and then sold (subject to the mortgage) to C. The latter got one of the infants on coming of age to release to him. Upon a bill filed by the complainants for foreclosure and sale, C. set up that M. had only a right in half of the property at the time of the mortgage, because of the infancy of two of the grantors; held, that the mortgage was a valid security upon the share conveyed by the infant, whose subsequent release was a confirmation of the title under which the mortgage had been given; and that the mortgage was also good against the remaining share, until the other infants should do something in avoidance of the deed. 1 Edwards, 301. Where a wife, who is an infant, unites with her husband in a deed of conveyance of his real estate to trustees, for the payment of his debts, under an ignorance of her legal rights, being informed, at the time she signed and acknowledged the deed, that the same would not prejudice her rights, such deed cannot afterward be set up against her as a bar of her right of dower in the land so conveyed. Sandford v. McLean, 3 Paige, 117. A conveyance by an infant feme covert, although executed and acknowledged, in the manner prescribed by the statute, is void. (Ib.) After marriage, an infant feme covert, cannot bind herself by any deed or contract, either in law or equity, except under the sanction of the court of chancery or in the cases, specially provided for, by statute. (Ib.) Where D. sold land to B., an infant, and the infant gave to D. a bond and mortgage upon the premises for the purchase-money; and the deed and mortgage were both duly acknowledged and recorded, and one-half of the purchase-money was paid to D. by B., at the time of the purchase; and B. the infant, went into possession of the premises, and continued in possession until after he arrived at the age of twenty-one years; and then Chapter I. Fraudulent sale by, what relief against An infant, however, has no privilege to commit a fraud (h): if, therefore, he were to sell and convey, asserting that he had attained his majority, it is conceived that in equity. the purchaser would, in equity, be entitled to the protection of the legal estate, (supposing him to have acquired it :) and that, if the infant, (supposing him to have the legal estate,) were to proceed at law to recover the property, equity would restrain the action, except upon the terms of his refunding the purchase-money; for instance, where an infant received a premium for a lease of his lands, upon his false assertion that the lessor was his guardian, Lord King decreed a return of the premium with interest.(i) It has, however, been held that, in order There must that Equity may interfere, there must be something equi- sentation. valent to misrepresentation on the infant's part; and that the mere fact of his entering into a transaction which could be valid only if entered into by an adult, is not such a fraud as entitles the other party to relief.(j)[1] By the 53 Geo. III. c. 141, s. 8, all contracts for the sale of any annuity or rent-charge by an infant are de (h) Chambers on Infancy, 412; and see Overton v. Banister, 3 Hare, 503. (i) Esron v. Nicholas, 1 De G. & S. 118. (j) Stikeman v. Dawson, 1 De G. & S. 90; Wright v. Snowe, 2 De G. & S. 321. sold the same to R., who conveyed them again to other persons; and all the persons had full knowledge of the mortgage, which was assigned by D. to L., it was held that the mortgage was a legal charge upon the land, and that if the premises did not sell for a sum sufficient to discharge the amount due upon the mortgage, with the cost of the suit, B. would be liable to pay the balance. Lynde v. Budd, 2 Paige, 191. A letter of attorney given by an infant, is absolutely void. (Pyle, &c. v. Cravens, 4 Litt. Rep. 21.) The avoidable acts of an infant, will be confirmed by slight acts and circumstances, after he is of age. Deason v. Boyd, 1 Dana, 45. [1] See 1 Fonbl. Eq. B. 1, Ch. 3, sec. 4; Savage v. Foster, 9 Mod. Rep. 35; Evroy v. Nichols, 2 Eq. Abridg. 489; Clare v. Earl of Bedford, cited. 2 Verm. 150, 151; Beecher v. Lordley, 1 Bro. Ch. Rep. 357; Sugden on Vendors, ch. 16, p. 262, 9th edit.; Bright v. Boyd, 1 Story C. C. Rep. 478; 2 Hovend on Frauds, ch. 22, p. 184; Story's Eq. Juris. vol. 1, secs. 385, 386. be misrepre Sale of annu charge by, is ity or rent |