Shipp v. McKee

80 Miss. 741

Opinion

Terral, I.,

delivered the opinion of the court.

By the last will and testament of Cynthia R. Shipp, she devised the lands in controversy to John W. Shipp for his life, and the remainder in fee to Mary B. Shipp and others; one-sixth interest therein being devised to Mary B. Shipp. John W. Shipp, the life tenant, deceased on the 18th day of September, 1899; and soon thereafter Mary B. Shipp brought her bill for partition against Mrs. Margaret B. McKee, her co-tenant, and McGrath, who claimed a lien upon said land under a trust deed thereon made by Mrs. McKee. In 1885, while Mary B. Shipp was a minor about 18 years of age, she executed, jointly with John W. Shipp, the life tenant, and with co-tenants in remainder, a conveyance of said properties (being about 1,336 acres of land) to Toof, McGowan & Co., under whom Mrs. Margaret B. McKee claims title. This bill is by Miss Shipp to have her one-sixth interest in said property allotted to her, and for the recovery of her share of the profits of said property since the 18th of September, 1899. Her bill being dismissed, she appealed.

It is said that appellant is barred of any remedy because she could and should, upon coming to the age of 21 years, have filed her bill to remove the cloud from her title created by the execution of the deed made by her while under said age. Under the authority of Fox v. Coon, 64 Miss., 465 (1 So., 629), such suit would lie, yet the appellant is in no legal default by failing to bring such suit. In Wallace v. Latham, 52 Miss., 297, it is said: “It .is well settled that the infant who makes a deed conveying realty during infancy has until such time as will complete the bar of the statute of limitation, afteV the removal of disability, to disaffirm the deed, and that bare recognition or silent acquiescence will not be regarded as confirmation of the sale, unless prolonged for the period required to make the statute of limitations a bar, or under circumstances requiring the party to decide and act as to confirmation or disaffirmance.” In French v. McAndrew, 61 Miss., 192, it is said: “The effect of the disaffirmance by her [a minor] is to render the conveyance void ah initio by relation, and to entitle her to charge the' purchaser for rents during the whole time that he occupied the proDerty, claiming under her deeds. But the defendant by the conveyance acquired the title of Mrs. Hubbard, who was a co-tenant of complainant, and thus became co-tenant with her, and his liabilities and rights are therefore to be tested by the rules governing co-tenants.” And so in the case here Mrs. Margaret B. McKee has acquired the rights of the other co-tenants in remainder with Mary B. Shipp, and is a co-tenant with her in said property; Mary B. Shipn being entitled to a one-sixth interest in said lands and Mrs. McKee to the other five-sixths interest therein. In Hoskins v. Ames, 78 Miss., 986 (29 So., 828), where the appellants were remainder-men under the will of Edmund Hatch, and the life tenant, under a decree of the vice chancery court, had conveyed the property in fee to Welborn, under whom appellees there claimed, the appellants were held not barred of remedy, although the appellees had been in possession more than forty years, and the appellants had reached majority, and had suffered more than thirty years to pass without making complaint. It was held that the remaindermen were not required to make any move until their right of possession came into existence. Under our statute, a tenant in remainder cannot bring suit for partition, nor would ejectment lie until his right of possession accrued.

Reversed and remanded.

After the delivery of the foregoing opinion the counsel for appellees filed an elaborate suggestion of error, to which response was made as follows:

Whitfield, C. J.,

delivered the opinion of the court in response to the suggestion of error.

Owing to the great regard we have for any views seriously urged by the learned counsel for appellee, we will make response to the suggestion of error filed in this case. The distinction between disaffirming a contract by a minor and bringing an action at law by a remainderman during the existence of a life estate is, of course, clear; but learned counsel is mistaken in asserting that the American doctrine is that the minor must, in all cases, disaffirm the executed contract in a reasonable time after reaching majority, though that reasonable time be short of the period which would bar the action under the statute of limitations. He relies chiefly on the case of Long v. Williams, 74 Ind., 119, but that case merely reannounces the doctrine of Law v. Long, 41 Ind., 586, and Scranton v. Stewart, 52 Ind., 68, and all three of these cases are impliedly, if not expressly, overruled by Sims v. Bardoner, 86 Ind., 94 (44 Am. Rep., 263) ; and they are also clearly in conflict with the doctrine announced by the supreme court of the Hnited States in Sims v. Everhart, 102 U. S., 300 (26 L. Ed., 87). All this will clearly appear if learned counsel will carefully examine the note to Sims v. Bardoner, re-reported in 44 Am. Rep., 273. In that note the learned editor says, at page 273: “It is true that the decisions respecting the disaffirmance of an infant’s deed are not in entire harmony with each other. While it is generally agreed that the infant, to avoid it, must disaffirm it within a reasonable time after his majority is attained, they differ as to what constitutes disaffirmance, and as to the effect of mere silence. Where there is nothing more than silence, many cases hold that an infant’s deed may be avoided at any time after his reaching majority until he is barred by the statute of limitations, and that silent acquiescence for any period less than the period of limitation is not a bar. Such was, in effect, the ruling in Irvine v. Irvine, 9 Wall., 627 (19 L. Ed., 800). See, also, Front v. Wiley, 28 Mich., 164, a well-considered case, and Drake's Lessee v. Ramsey, 5 Ohio, 251. But, on the other hand, there appears to be a greater number of cases 'which hold that silence during a much less period of time will be held to be a confirmation of the voidable deed. But these cases either rely upon Holmes v. Blogg, 8 Taunt., 508 (which was not a case of an infant’s deed), or subsequent cases decided on its authority, or they are rested in part upon other circumstances than mere silent acquiescence, such as standing by without speaking while the grantee has made valuable improvements, or making use of the consideration for the deed. The preponderance of authority is that in deeds executed by infants mere inertness or silence, continued for a period less than that prescribed by the statute of limitations, unless accompanied by affirmative acts manifesting an intention to assent to the conveyance, will not bar the infant’s right to avoid the deed; and those confirmatory acts must be voluntary.” It is thus clearly shown that the true doctrine is, and that the preponderance of authority is, that in deeds executed by infants mere silence continued for a period less than that prescribed by the statute of limitations, unless accompanied by conduct that would estop, will not bar an infant’s right to avoid the deed. It may be true that a majority of cases carelessly state the case as counsel puts it; but, as shown in the quotation above, these cases relied upon Holmes v. Blogg — a wholly false basis, since it was not the ease of an infant’s deed at all — or depend upon conduct upon the part of the infant which would work an estoppel on him. In this case there is no evidence whatever to show anything on the part of this minor beyond mere silence. She was almost the whole of the time out of the state, having done nothing affirmatively, having not bound herself by any positive conduct which would work an estoppel. She had the full time fixed by the statute of limitations after majority within which to disaffirm. This is well settled in our state by Wallace v. Latham, 52 Miss., 291; Brantly v. Wolf, 60 Miss., 420; Allen v. Poole, 54 Miss., 323.

Learned counsel is also mistaken in saying that there is no evidence showing that Busby was trustee. The recitals in the instruments of record show this with sufficient clearness and distinctness.

Overruled.