Weed v. Beebe , 21 Vt. 495 ( 1849 )

The opinion of the court was delivered by

Poland, J.

The facts in this case, as shown by the bill, answers and evidence, seem to be substantially the following. On the seventeenth day of February, 1843, the orator contracted to sell to Beebe and Orcutt certain premises in the town of Charleston, of which he was the owner, for the sum of three hundred dollars, — two hundred dollars of which was to be paid by building a barn and finishing a house for the orator, and one hundred dollars to be paid in money, or by taking up a note for that sum, which one John M. Beebe, father of Willard M., held against Jedediah Skinner; and on the same day the orator executed a deed of the premises to Willard M. Beebe, and Beebe and Orcutt executed to the orator a written obligation for the payment of the $300, agreeably to their contract. Beebe and Orcutt, in pursuance of their contract, went on and performed, or nearly performed, the labor, which was to be in payment of two hundred dollars toward the purchase, but neglected and refused to pay the remainder of the purchase money. Orcutt having absconded from the state, and being wholly insolvent, the orator commenced his suit against Willard M. Beebe, for the recovery of the one hundred dollars, returnable to the June Term of Orleans county court, 1844; to which action the said Willard M. appeared and pleaded, that, at the time of the execution of the deed and contract aforesaid, he was a minor, under the age of twenty one years, and, having established that fact, he defeated a recovery by the orator against him for said sum. After the determination of that suit, and after the said Willard M. became of full age, on the fourth day of September, 1845', the said Willard M. conveyed the premises in question to Samuel S. Lang, — Lang having full notice of the nonpayment of the said one hundred dollars of the purchase money, and that Willard M. Beebe had avoided payment of it on the ground of infancy. Lang, at the time he received the deed from Willard M. Beebe, executed his notes, for the sum of $130, to John M. Beebe, and also executed a mortgage of the premises to John M. Beebe, to secure the same. The orator also executed a quitclaim deed of the premises to Jedediah Skinner, on the twenty-fourth day of July, 1843.

There can be no doubt, but that Willard M. Beebe, being a minor at the time of entering into the contract with the orator, might have disaffirmed the contract on coming of age; and had he done so, the orator probably could not have reclaimed the premises, without paying back what he had received in part payment for the land. Whatever may be the law elsewhere, it is well settled in this state by the cases of Bigelow v. Kinney and Richardson v. Boright, that an infant cannot avoid that part of his contract, which binds him, without also avoiding that part, which is in his favor. If he purchase land and execute notes for the purchase, or a mortgage of the land to secure the purchase money, he cannot disaffirm the notes and mortgage and claim the land under his deed. So if he sell land and take notes, he cannot avoid his deed and compel payment upon his notes. And the good sense and equity of this doctrine is too apparent, to require any reasoning, or authority, to support it. In the present case the defendant Beebe paid a part of the purchase money, but avoided the payment of the residue, by reason of his infancy.

It is strongly insisted in this case by the counsel for the defendants, however, that the orator could make no claim upon the land, or any lien upon it, by reason of this disaffirmance by Beebe, until he first repaid, or offered to repay, the two hundred dollars he had already received. As before intimated, the orator probably would have been obliged to do this, had Beebe disaffirmed his contract upon his coming of age, and claimed to be restored to his former condition in relation to the purchase of the premises. But this it seems he did not do; he not only affirmed the contract of purchase, by continuing in possession of the land, but even, after he had actually avoided the payment of the debt to the orator for the land, he proceeded to convey the land away to Lang.. This, we think, must effectually preclude him from claiming any return of the sum he had previously paid. Under these circumstances it seems apparent to us, that, upon the plainest principles of common honesty, as well as upon the principles of equity law, the orator should have a lien upon the premises, as against Willard M. Beebe, for that portion of the purchase money, the payment of which he had avoided by his plea of infancy.

The defendant Lang admits, that he had notice of all these facts, upon which this equitable lien of the orator is founded; and of course he could acquire no greater right, or claim to stand in any better condition, than Willard M. Beebe himself. We are satisfied from the evidence, that he had express notice, that the orator would claim this lien upon the land, before he purchased; but we do not think it was necessary for the orator to make this out, in order to charge him with the lien. It was decided upon the present circuit, in Rutland county,^* that the doctrine of equitable lien, as between the vendor and vendee of real estate, for the purchase money, obtains in this state; but we have not examined, to see whether the orator could sustain his bill upon that principle, as we think it is well based, without resorting to the aid of vendor’s lien.

It is insisted, however, that the bill should have been brought in the name of Skinner, by reason of the quitclaim deed from the orator to him of July 24, 1843. But we do not see any good ground for such claim. That deed clearly conveyed nothing to Skinner. The orator had nothing in the premises to convey, at that time; he had deeded the land away to Beebe, and at that time nothing had been done by Beebe to avoid the conveyance, and the deed was good as against the orator. If he had subsequently conveyed his right in the land, or even his debt, or claim against Beebe, to Skinner, we see no objection to its being enforced in the name of the orator, even for the benefit of Skinner.

It is also insisted, that John M. Beebe acquired an interest in the premises by virtue of his mortgage from Lang, and that he should have been joined as a party defendant. The orator might undoubtedly have joined John M. Beebe as a party, by reason of such conveyance. But it seems to us, that he is not a necessary.party to this bill, for the purpose of settling the rights of the parties before the court; and it is not usual to turn a party out of court, or even to delay a cause to bring in other parties, unless it is necessary to do so, in order to settle the rights, or properly protect the interests, of the parties already before the court. We do not see how these defendants can be at all prejudiced by John M. Beebe not being before the court. His rights, of course, are not prejudiced by any decree made here; and if the orator was willing to leave the matter open for farther litigation with John M. Beebe, respecting his mortgage, we do not see how thesé defendants have any ground of complaint.

The decree of the chancellor is therefore affirmed.

* See Manly et al. v. Slason et al., ante, page 271.