Nelson v. Eaton , 1 Redf. 498 ( 1863 )

The Surrogate. — It is insisted, on behalf of Ellen Eaton, that Nelson is not in a position to avoid the deed. That if Wellington,-Nelson’s grantor, was ever in a position to dis-affirm the contract on the ground of. the infancy of his brother, that Ellen would have as much right to insist on the*affirmance of the contract, as Wellington would to have the same avoided.

This case then fairly presents the question: What parties, besides the infant, may avoid a contract made during infancy ? If sympathy could ever be allowed to be a guiding motive in courts of equity or courts of law, the claims of the daughter Ellen, in this case, would have great weight in determining this controversy. But such emotions must be disregarded in judicial tribunals. General rules must not bend to meet individual cases of hardship.

There are very few adjudications bearing upon this question in this State.

Lobd Mansfield, in the case of Zouch v. Parsons (3 Burr., 1794), cites and approves the doctrine laid down by Perkins, in these words: “We think the law is, as laid down in Perkins, that all gifts, grants, or deeds, made by infants, by matter in deed, or in writing, which do take effect by delivery of his hand, are voidable by himself, by his heirs, and by those who have his estate.”

The same doctrine is approved in the case of Fonda v. Van Horne (15 Wend., 631), and in the cases there cited.

The doctrine which appears to control this case, is laid down in 2 Hilliard on Real Property, at page 431, viz.: That the deed of an infant may be avoided when he attains his age, and by those who are privy in blood, or estate, but not by a stranger. Nelson having the estate, has the right to disaffirm the contract. It may be said to have been dis-affirmed also by Wellington Eaton, when he conveyed to Nelson.

Taking this view of the case, I must distribute one half of the proceeds to Ellen and the other half to Nelson.