Dolph v. Hand

27 A. 114, 156 Pa. 91, 1893 Pa. LEXIS 1316

Opinion

Opinion by

Mb,. Justice Williams,

This case presents an interesting question upon a state of facts that I do not remember to have met with in any decided case. The facts are fortunately free from controversy, so that their legal effect is the only question to be determined. It appears from an examination of the evidence that Alexander Dolph was at the time of his death, in 1860, the owner of a tract of land lying in what is now Lackawanna county, containing seventy acres. He died intestate leaving eight children to survive him. Edward, one of his sons, administered on the estate. In 1864, before the final settlement of the estate, Alfred, another son, died, leaving five children surviving, of whom the plaintiff in this action is one. Some years later Edward undertook to unite in himself the shares of all the heirs at law of his father in this tract of land, by purchase. He agreed upon terms with all his brothers and sisters, and with the heirs at law of his deceased brother Alfred. He paid sixteen hundred dollars for Alfred’s undivided one eighth part, which was then held by his five children. A deed was made to him in which they joined, James M. Dolph, the plaintiff, being at the time under the age of twenty one-years. This deed was acknowledged and delivered on the twenty-ninth day of December, 1869. The justice of the peace who took the acknowledgment of the several grantors incorporated into his certificate the following statement in regard to James : “ the said James M. Dolph, being a minor, acts with his own will and accord, and agrees to ratify the same when he shall become of full age.” James was at the time between seventeen and eighteen years of age, and reached his majority in August, 1874. This suit was brought to the November term, 1888, without any notice or act of disaffirmance. Upon these conceded facts ought the plaintiff to recover ?

Whatever may have been held in earlier times, or iu other jurisdictions, in regard to sales and conveyances by a minor, we understand the fair effect of our own cases to be as follows : The deed of James M. Dolph, executed in his minority, did not bind him if, upon coming of age, he decided to disaffirm it. He could affirm or disaffirm at the proper time. His deed was therefore not void, but voidable ; and the right to avoid it was personal to himself. This right ought in j ustice to all the parties, and as a matter of public policy, to be exercised within a reasonable time or be treated as lost by waiver. If one who has this right to elect does not exercise it within a reasonable time, but with full knowledge of his privilege, omits or neglects to assert it, his omission may fairly be regarded as the equivalent of an act of affirmance, and as amounting in fact and in law to ratification. Our cases hold that a voidable deed may be ratified in many ways. It may be done by express words, as by a deed of ratification, a release, a declaration made to one about to become a purchaser, or the like. It may be done by implication from the acts or declarations of the grantor, showing a recognition in fact by him of the validity of the title, and an acquiescence in his previous act of conveyance. It may be done by a neglect to disaffirm, continued for such a length of time, and under such circumstances, as to make it inequitable for him to be allowed to disturb the title. The defendant in this case does not allege an express ratification, but concedes that no such ratification has been made. He sets up no such acts or declarations relating to the land or the title thereto as might be equivalent to an express ratification. What he asserts is that the voidable deed has been ratified by an implication fairly arising from the conduct of the grantor, extending through such a length of time, and having such an unequivocal significance, as to make it as effectual as express words could be. The circumstances relied on to support this contention may be stated thus: (a) Knowledge on the part of the grantor that his deed was voidable and could be affirmed or disaffirmed on reaching full age; (b) continued residence near, and most of the time in full view of, the property and the improvements made upon it; (c) his knowledge of the use of the tract for mining purposes during all these years, and of the erection of coal-breakers and other improvements thereon by owners and lessees; (d) his failure to disaffirm when he knew his right to do so fully vested on his arrival at full age.; (e) the continued omission for fifteen years after coming of age, with a full knowledge of all the circumstances affecting the property, to assert his right to disaffirm.

The case of Grimes v. Urban, 2 Grant, 96, comes nearer to this upon its facts than any case in our reports. In that case there had been a conveyance during the minority of the grantor and a delay for fourteen years to disaffirm; and it was held upon the facts of that case that the delay did not amount to an affirmance. The authority of Grimes v. Urban was recognized in Lenhart v. Ream, 74 Pa. 59, but the case went off on another question raised under the statute of limitations. Soullier v. Kern, 69 Pa. 16, which vs^as cited on the argument, did not involve a question of ratification. The title of the minor was saved in that case by the proviso to the act of April 16, 1840, P. L. 413, which made the sale of the property of the minor for taxes irregular and ineffectual. What shall amount to a ratification of a voidable instrument generally is a question that has arisen quite frequently. Thus it has been held that the receipt of rent falling due upon á lease which the minor might have avoided, when done with knowledge of the character of the lease, is sufficient to work a ratification of the lease. Myers v. Kingston Coal Co., 126 Pa. 582. But such an act will not operate as a ratification, unless it is done with a knowledge of the instrument that may be affected by it: Zoebisch v. Rausch, 133 Pa. 532. Nor will ratification be implied from mere lapse of time, against an express refusal to ratify : Molly v. Behm, 133 Pa. 614. The retention of a house or other article purchased by an agent amounts to a ratification of the unauthorized purchase, on the part of the principal. Taking possession, and occupying, is a ratification of the act of an agent in buying or leasing property. Retention of the purchase money for an article sold by another is a ratification of the act of sale. In the case of an infant vendor, if the consideration remains in his hands when he comes of age, and ho afterwards uses or parts with it, this will ordinarily amount to a binding ratification of the sale by him. But when the consideration remains in his hands after coming of age, having been used by him, it- seems to be agreed on all sides that one entitled to avoid his deed should make and signify his election within a reasonable time, or the omission so to do may operate as an affirmance. The difficulty has been with the application of the rule, and the question, “ What is a reasonable time ? ” has received different answers in different jurisdictions. In Illinois two years seems to be regarded as the proper limit of a “ reasonable time.” In Iowa three years and eight months have been held to be unreasonable delay: 59 Iowa, 6T9. In Connecticut thirteen years was held to be unreasonable: 6 Conn. 494. In Urban v. Grimes, supra, this court held that fourteen years was not unreasonable. In this case we have a still longer period of delay, accompanied by retention of the purchase money, with the fullest knowledge of the voidable character of the deed, of his own right to disaffirm, of the occupation of the land by lessees, of the erection of improvements thereon, and of the steady enhancement in value of the land by reason of the development of the region in which it was. All these considerations were brought daily before him by the circumstance that the land was in full view from his house, or was passed by him in going to and returning from his work, for more than eighteen years after the making of the deed, and for fifteen years after he came of full age.

We shall not disturb Grimes v. Urban, but we are not willing to extend the rule there laid down. On the other hand, when the length of the delay in this case is considered in connection with the circumstances to which we have adverted, we conclude that it is unreasonable and that it should be regarded as amounting to a waiver of the right to disaffirm, and therefore the equivalent of an express ratification. It is inequitable to permit one to wait for fifteen years, with a full knowledge of his rights, and allow him then to disaffirm, when the altered situation of the property and the region in which it is located are so evidently the inducement. Great vigilance in the right to disaffirm, ought not to be required of one coming up out of disability. Reasonable opportunity should be given for such an one to become familiar with his situation and his rights. The rule in Grimes v. Urban carries this doctrine of a reasonable opportunity to a great length, beyond which we are not willing to go.

The judgment is reversed.