Jenkins v. Jenkins , 12 Iowa 195 ( 1861 )

Wright, J.

The deed of real estate by an infant is voidable and not void. In the language of one of the cases, if founded on a valuable consideration, “ it is not a void act, but is a valid contract until regularly avoided.” (Doe v. Abernathy, 7 Blackf. 443; Tucker v. Moreland, 10 Pet. 58 ; Jackson v. Carpenter; 11 John. 539; 2 Kent Com. 236.

What acts, after attaining majority, are necessary to avoid or confirm (if any act is necessary for the latter,) a conveyance made during minority, is not well settled by the authorities. In some, it is held that there must be some positive and notorious act to disaffirm, and that this may be done at any time before the statute of limitations would bar an action of ejectment. Another class of cases hold that this right must be exercised within a reasonable time, and that the failure to do this will confirm the conveyance. See cases supra, and Richardson v. Boryght, 9 Verm. 368; 2 Kent Com. 238; Kline v. Beebe, 6 Conn. 494.

Our statute (Code of 1851 § 1488, re-enacted, Rev. 1860, § 2540,) has declared the rule thus : “A minor is bound, not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract, and remaining within his control at any time after his attaining his minority.”

What is a reasonable time, within the meaning of this statute, must of course, depend upon the circumstances of each case. Thus, it would be material to inquire, whether the minor was a non-resident of the State, on attaining his majority, to ascertain his capacity for transacting business; what influences, if any, were brought to bear upon him by those interested in preventing a disaffirmance; whether any suits were pending; the determination, of which were material in electing to disaffirm ; these and many other inquiries would naturally and properly arise in considering what would be “ reasonable time.”

In this case, complainant attained his majority on the 5th of January, 1860. On the 23rd of that month a special execution issued for the sale of the land under a mortgage made by his grantee, and he on that day, filed his bill in chancery, to avoid the deed made during his minority, and to restrain the sale under said execution. No special equitable circumstances were shown, why he should have sooner manifested his disaffirmance, and in our opinion the delay was not unreasonable.

It is left in much doubt whether the complainant ever received any part of the consideration for the conveyance. The land was owned jointly by himself and his brother, and the evidence tends to show that this brother (who had attained his majority,) received all the consideration. Whatever may be the truth in this respect, however, it is not shown, nor pretended that he had remaining within his control, at any time, after attaining his majority, any money or property received by him by virtue of the contract. And it is only such money or property as may thus remain, that he is bound to restore, before he can avoid his contract or conveyance.

The purchaser from complainant had notice and full knowledge of his minority, at the time of the conveyance. Subsequently this grantee mortgaged the premises to his corespondents, who bad no notice of tbe minority. In tbe proceedings to foreclose tbe mortgage, complainant was not a party. Reid, that tbe mortgagee, was not, as against complainants, to be treated as a bona fide purchaser. Tbe right of tbe infant to thus avoid bis contract, is absolute and paramount to all equities in favor of third persons; even purchasers without notice. This is tbe rule; tbe exceptions to it are based upon special circumstances and do not destroy it. 1 Am. L. C. 259.

Decree affirmed.