Leitensdorfer v. Hempstead , 18 Mo. 269 ( 1853 )

Gamble, Judge,

delivered the opinion of the court.

Ursule Chartrand being entitled to an interest in the property described in the petition as an heir of her father, conveyed that interest in 1828 for a valuable consideration to her brother, Noel Chartrand, she then being a minor. Afterwards, by the death of a brother, she acquired another interest in the same property, as one of his heirs. In 1851, being then married, she and her husband conveyed “ all their right, title, interest, estate, claim and demand inlaw or equity, in possession or expectancy, remainder or reversion in the premises,” to Drake and Hempstead. No other act was ever done to avoid the deed which she had made during her minority than the making of this second conveyance. The question is presented, whether the second deed avoids the first.

1. There are different modes by which an adult may avoid a conveyance by bargain and sale made while he was a minor. It may be by entry, ejectment, or by any act unequivocally manifesting an intention to avoid it. A resale after he attains his majority, and a conveyance of the property, will operate the avoidance. But, in the language of Chancellor Walworth, in the Eagle Fire Co. v. Lent, 6 Paige’s R. 638, “to render a subsequent conveyance an act of dissent to the prior conveyance of an infant, it must be inconsistent therewith, so that both cannot properly stand together.” The doctrine is as well established as any in the law, that the deed of an infant passes the estate subject to be divested by avoiding the conveyance. Here the title was in Noel Chartrand, by the deed made by his sister for the interest inherited from her father, and when the deed was made to Drake and Hempstead, she had title to the interest inherited from her brother. The title to the portion descended from her father was not in her, but she had a right. to resume that title, because she had conyeyed it while a minor, and if she had distinctly conveyed it away by a second deed, the same act would have been a resumption of the title and the transmission of it to her grantee. But her conveyance to Hempstead and Drake had a subject on which to operate, without being held to be an avoidance of her deed to her brother, and its terms do not require that she shall be understood to design avoiding her first deed. The Circuit Court, then, erred in holding that the second deed avoided the first, and conveyed to Drake and Hempstead the interest which had descended from her .father and which she had conveyed to her brother.

The judgment is, with the concurrence of the other judges, reversed, and the cause remanded.