McGarrity v. Cook

114 S.E. 213, 154 Ga. 311, 1922 Ga. LEXIS 353

Opinion

Atkinson, J.

The ruling in the first headnote states principles of law previously decided 'by this court, and does not require elaboration. Civil Code (1910), § 4184; Nathans v. Arkwright, 66 Ga. 179.

It was contended that the plaintiff was estopped, by her conduct after attaining majority, from disaffirming or repudiating the deed made by her during infancy. Error is assigned upon the charge as complained of in the 15th ground of the amended motion for new trial, because it excluded that contention from consideration by the jury. Of course, if after attaining majority a grantor legally ratifies his deed executed during infancy, he will be estopped from thereafter repudiating or disaffirming it on the ground of infancy, under such circumstances as he would be bound by any other deed that he. might have made after attaining majority. The case of Bigelow v. Kinney, 3 Vt. 353 (21 Am. D. 589), was an action of ejectment. “The plaintiff claimed under a deed from Joseph E. Williams, dated November 12,1818; the defendant claimed under inesne conveyances from the same Williams, and proved that on the twelfth of November, 1818, the plaintiff had executed a mortgage to Williams of the same premises deeded to him, and that two days afterward the plaintiff had executed a quitclaim deed of the premises to Williams. Williams immediately entered into possession, and in 1821 conveyed to another, who remained in possession until 1828, when he conveyed to the defendant’s grantor. It appeared that at the time of the mortgage and quitclaim deed the plaintiff was a minor, and did not arive at maturity until May, 1819; that in consideration of the quitclaim deed, Williams had agreed to pay the plaintiff one hundred dollars when he sold the premises; that the money had been paid, and that the plaintiff had demanded it after he had arrived at maturity. The county judge charged that if the plaintiff was a minor when he executed the mortgage and quitclaim deed he was entitled to recover, and that the evidence did not amount to a ratification. Verdict for the plaintiff. Defendant excepted to the instructions of the court,” The judgment was reversed. In the course of the opinion, among other views advanced for holding the charge upon the subject of ratification erroneous, it was said: “A deed executed and delivered by an infant, conveying land, remains good and valid until it is avoided by him; and as he alone has the power of avoiding the deed and rescinding the contract, he is bound, in reason and justice, after he comes of age and is competent to exercise a discretion upon the subject, to make his election and give notice of his intention. He ought not to be allowed to leave the grantee, upon whom the contract is binding, in a state of suspense and uncertainty; and unless he makes known his determination in a reasonable time, it is just that the contract should become absolute against him. At any rate, silence on his part while the grantee, or any one under him, is claiming, holding, and occupying under the contract, is an acquiescence from which a confirmation of the contract may be inferred.”

In Hatch v. Hatch, 60 Vt. 160 (13 Atl. 791), it was held: “A contract by which a debt is incurred by an infant may be ratified by his express promise to pay it, made after he beeom.es of age; and his acts and declarations, made or performed after he has attained his majority, with deliberation and knowledge of his rights, may be of a character to constitute perfect evidence of such ratification.” In the course of the opinion it was said: “ There is no question but that the contract, by which a debt is incurred by an infant, may be ratified by an express promise to pay the debt, made by the infant, when he becomes of age, deliberately and with knowledge that he is not liable by law. To this extent the cases agree. Beyond this they are not entirely harmonious, at least in the enunciation of what is required to constitute ratification. As illustrations, see Smith v. Mayo, 9 Mass. 62, and Whitney v. Dutch, 14 Mass. 457. There are many cases which hold that, although' an express ratification is necessary, yet it is not required to be in the form of an express new promise. Tibbitts v. Gerrish, 5 Foster (N. H.) 41, and Harris v. Wall, 1 Exch. 122, are examples. Acts and declarations of one after attaining majority, in favor of his contract, may be of a character to constitute as perfect evidence of a ratification as an express and unequivocal promise. Mere acknowledgment of the contract, or partial payment, will not alone be sufficient. There must either be an express promise to pay, or such a direct confirmation as expressly ratifies the contract, although it be not in the language of a formal promise. Wilcox v. Roath, 12 Conn. 551; Gray v. Ballon, 4 Wend. 403; Whitney v. Dutch, supra. The cases in Vermont have not recognized the necessity of an express promise in terms in order to constitute ratification of an obligation incurred during infancy. Where the declarations or acts of the individual after becoming of age fairly and justly lead to the inference that he intended to and did recognize and adopt as binding an agreement executory on his part made during infancy, and intended to pay the debt then incurred, we think it is sufficient to constitute ratification, provided the declarations were freely and understandingly made, or the acts in like manner performed, and with knowledge that he was not legally liable.”

Little v. Duncan, 9 Rich. (S. C.) 55 (64 Am. D. 760), was an action upon a sealed note for $75. Infancy of the defendant at the date of giving the note was pleaded and proved. It was further shown that after the defendant attained his majority he admitted that the giving of the note was a just transaction, and gave the plaintiff a watch in part payment, which the plaintiff was to keep if he liked it and it kejot good time. The watch was returned, during the defendant’s absence, to his mother. The plaintiff contended that these facts constituted an affirmance of the contract. On review the judgment in favor of the plaintiff was sustained. On the question of affirmance of the voidable contract of the infant the court, among other things, said: “ There are three modes of affirming the voidable contracts of infants: by an express ratification, by acts which reasonably imply an affirmance, and by the omission to disaffirm within a reasonable time. Curtin v. Patten, 11 Serg. & R. 305; Kline v. Beebe, 6 Conn. 494. In Chambers v. Wherry, 1 Bail. L. 28, a simple declaration was not enough, unless accompanied by some act which recognizes the validity of the contract. In Scott v. Buchanan, 11 Humph, 468, it is considered now the settled rule that in general the deed of an infant is voidable only at his election, and may be affirmed by an express ratification, or acts which reasonably imply an affirmance. In Armfield v. Tate, 7 Ired. L. 258, an infant was held to pay his note for purchase money of land, his subsequent act being an affirmance of original contract. In West v. Penny, 16 Ala. 186, I learn from an abstract of the case it was held that a verbal affirmance of a contract made during minority renders it valid from date, whether under seal or not, being in its legal effect but a waiver of the defense of infancy.”

The case of Wheaton v. East, 5 Yerg. (Tenn.) 41 (26 Am. D. 251), was an action of ejectment. The plaintiff made a prima facie case. The defendant produced a deed from the plaintiff to himself. To destroy the effect of the deed, plaintiff proved that when he executed it he was an infant; whereupon the defendant offered parol evidence to prove that plaintiff had ratified his deed after he became of age. A judgment of the trial court for the defendant was-affirmed. In the course of the opinion it was said: “ A deed can not be necessary to confirm that which was executed during infanc3r, because that deed passed the interest in the estate, and being only voidable at the election of the infant, should he, or his heirs, fail to disaffirm it, a good title will be vested, and no other person can call it into question on account of the infancy of the grantor at the time it was executed: See 2 Kent Com. 194, and authorities there cited. Amffhing therefore, from which his assent, after he arrives at age, may be fairly inferred, will be sufficient to affirm the deed made during infancy, and prevent- him from afterwards electing to disaffirm it. In the case before us, such inference is fairly deducible from the conduct of the plaintiff after he arrived at full age. He wanted only a few months of attaining the age of twenty-one years when he executed the deed. A full price was paid him iu money, at the time he made the deed. He was often in the neighborhood of the lot sold, after he arrived at age, and saw the defendant making large expenditures in the erection of valuable improvements, and yet he is heard to say nothing in disaffirmance of the contract for about four years. The circumstances were such as not to. excuse this long silence. But in addition to the absence of any act of disaffirmance, he, on several occasions, said he had sold the lot, had been honorably paid -for it, and was satisfied. He also authorized a proposition for its purchase to be made to the defendant. These circumstances fully warranted the jury in coming to the conclusion that he had affirmed the contract, and precluded him, after all this, from setting up his infancy to avoid it.”

For other decisions on the general subject see cases cited in a note to Craig v. Ban Bebber, 18 Am. St. R. 569, 675, 688 (100 Mo. 584, 13 S. W. 906). It is not necessary for the purposes of this case to go the full extent of all that i's quoted from the foregoing decisions; but it may be stated as a rule, that if an infant executes a deed, he may after attaining majority affirm it by acts which reasonably imply an affirmance, and after such affirmance he will be estopped from avoiding the deed on the ground of his infancy at the time of its execution. The evidence tended to show, among other things, that plaintiff, an educated woman 19 years of age, executed her deed to her brother for the purpose of enabling him to sell her interest in the land to third persons. The deed did not disclose infancy of the grantor, stated a fair consideration, and was duly recorded. The grantee sold the land upon a full consideration to purchasers without notice of the plaintiff’s infancy, who with their successors retained possession and occupancy of the property without notice of such infancy until the plaintiff was 27 years of age. The plaintiff was fully aware of the fact of the sale by her brother and the subsequent sales of the purchasers from him, and of their several possessions and occupancy of the property. After her attainment of majority, with knowledge of the facts above stated the plaintiff visited the home of the purchasers, which was the property conveyed in part by her deed, and did not at any time intimate to them the fact that she was an infant at the time her deed was executed or that she claimed an interest in the property. Her interest in the money received from the sale of the land was retained by her brother under a parol agreement with plaintiff, after her majority, that he would hold it for her for reinvestment in other property when she should select another investment. She failed to make the selection, and on account of such failure her brother did not make any investment. ■ After the death of her brother the plaintiff demanded the money from his widow, and, after refusal by the widow, instituted the action on the basis of a disaffirmance of her deed. Such conduct upon the part of plaintiff after her attainment of majority, in agreeing with her brother that he should hold her part of the money for reinvestment, was a clear recognition of the sale and affirmance of her deed; and the jury would have been authorized, in the circumstances, to have found that there was an implied affirmance of the deed, and that the plaintiff was estopped from avoiding the sale.

As a reversal will result from the ruling in the preceding division, no ruling will be made as to the sufficiency of the evidence to support the verdict. Other assignments of error, based on rulings complained of in the amendment to the motion for new trial, are without merit and not of such character as to require elaboration. Judgment reversed.

All the Justices concur.