Collins' Lessee v. Rigua ( 1797 )

Bassett, C. J.

(Charge.) Much has been said; it appears from the evidence that both plaintiff and defendant set up a title to the land from the same source; therefore defendant cannot object to plaintiff’s antecedent claim. But he objects that he has from plaintiff’s father and plaintiff a conveyance bond for the tract sued for. In answer to that defense plaintiff says he was an infant when he executed it. It is very true that an infant, if he enters into contracts of this sort, they are not obligatory upon him; that is, that the bond is that voidable act, which plaintiff may take advantage of or not as he chooses. There is this clear distinction warranted by the books, that there are persons whose acts are void, and others whose acts are voidable. A bond entered into by a feme covert is void, but a bond entered into by an infant is only voidable, and the books warrant this distinction. If an act was void when done, how could it be made good when the infant comes of age? Whether this point of defense is good or not depends upon the evidence of facts. From the family register and the evidence of Mrs. Townsend the fact of plaintiff’s age is to be gathered, and it would appear that plaintiff was twenty years and nine months old when the money was paid. The bond of an infant is not void but voidable, but whether it is void or not depends upon the facts laid before you.

The second objection is whether William Collins was dead when the action was brought; as long as William Collins lived, plaintiff had no title. If plaintiff, after he was of age, did any act to confirm the defendant’s title, your verdict must be for defendant.

There is a strong distinction between a bond for payment of money and a bond for doing a collateral act, as conveying of land. I was in the practice of the law here nearly 24 years, and there was formerly scarce any title in ejectment without a conveyance bond being part of the title. In the case of Loftland and Draper in 1774, a bond was given in evidence by defendant made by a feme covert. (N. B. I suppose he meant this distinction of his was allowable then.) Bond of an infant is voidable, that is, he may when he comes to age avoid it. The privilege of infancy is not a sword, but a shield; they are not to commit frauds and act improperly.

Verdict conformable to the charge.