Clawson v. Doe

5 Blackf. 300, 1840 Ind. LEXIS 27

• Court: Indiana Supreme Court
• Decided: May 30, 1840
• Status: Published

Opinion

Sullivan, J.

Ejectment. The facts of this case are, that on the 4th of November, 1833, Rebecca Ross then being sole and unmarried, but now the wife of Moore, one of the lessors of the plaintiff conveyed by deed of general warranty to the plaintiff in error, Clawson, for a valuable consideration, all her right and title to the premises in question. At the time of the conveyance she was an infant. Claioson entered upon the premises, and remained until the commencement of this suit in, the quiet and uninterrupted possession of them. The present suit was brought by the said Rebecca and her husband to recover the land so conveyed, on the - ground that the conveyance by her during her minority was a void act. On the trial in the Circuit Court, the defendant asked the Court to give the following instructions to the jury, viz. If the plaintiff’s lessors have never demanded possession of the land, or given any notice to the defendant of their dissent to the conveyance, although the said Rebecca was an infant when she made it, they should find for the defendant. 2. That plaintiff’s lessors, before bringing the suit, should have given notice to the defendant of their intention to avoid the sale. The Court refused the instructions. Verdict and judgment for the plaintiff.

The action of ejectment is an action of trespass, and the defendant is always regarded by the plaintiff as a trespasser. Hence, where an individual is in the possession of land with the permission or acquiescence of the owner, a suit cannot be sustained against him for the possession without a notice to quit, or until there be a demand of possession and a refusal, or until he be guilty of some other act which will make him a ■wrongdoer. And this rule applies whether the defendant be in possession under a contract of sale, or as a tenant. Doe ex dem. Miller v. Noden, 2 Esp. Rep. 530.—Doe ex dem. Newby v. Jackson, 1 B. & Cress. 448.—Right ex dem. Lewis v. Beard, 13 East, 210.—Denn ex dem. Brune v. Rawlins, 10 East, 261.—Taylor v. M’Crackin, 2 Blackf. 260.—1 Chitt. Gen. Pr. 571.

C. B. Smith, for the plaintiff. C. LI. Test for the defendant.

In the present case, the defendant was a bona fide purchaser of the premises for a valuable consideration. The purchase was made, it is true, and possession taken, during the minority of the grantor, but the purchaser has remained in the possession of the property for the period of five years after she arrived at maturity, with the acquiescence of herself and husband. Having been so put into possession, and having continued there with their consent, we do not see that he has been guilty of any act which can make him a trespasser. The conveyances of infants are either void or voidable. Their executory contracts are said to be void, their executed contracts, voidable. Until the defendant was notified of the intention of the lessors of the plaintiff, to avoid the conveyance, he might rightfully continue in possession of the land. Whether in disaffirming the contract and avoiding the deed, (if it can be avoided,) Moore and wife should not refund the purchase-money, need not now be decided. The Court erred in refusing the instructions asked, and the judgment must be reversed.

Per Curiam.

The judgment is reversed, and the verdict set aside, at the costs of the relators. Cause remanded, &c.