Graves v. Hickman

Delany, J. Com. App.— Our opinion is that there is error in the judgment of the court below. We must suppose that the act of October 24, 1871 (Pasch. Dig., 7002-4), regulating the removal of the disabilities of minors, was-passed in the interest of persons oi that class. It certainly was not intended to aid strangers, or the relatives of the minor, to get possession of his property without the delay and inconvenience of probate proceedings. And we may suppose that in any proceeding before the district court under this act, it would be made to appear to the court that the promotion of the minor’s interest was the only motive to the proceedings. If the real purpose was not to benefit the minor, but to divert his property to the uses of others, then a fraud was practiced upon the court, and at the same time a great wrong done to the minor. The demurrer admits the allegations contained in the petition to be true. They are not set forth with the distinctness and certainty which ought to be found in a petition asking for equitable relief'; but no objection is made on that ground. The petition sets forth that, in the year 1874, R. L. Graves was largely indebted to the defendant ; that plaintiff was not bound, in any way for that debt; that at [383] that time, when the plaintiff was only eighteen years of age, and was wholly ignorant of matters pertaining to the transaction of badness, and while he was absent from the state, the defendant, knowing all these facts, concerted with R. L. Graves to procure the removal of plaintiff’s disabilities; that they immediately thereafter obtained from plaintiff a power of attorney, by virtue of which said E. L. Graves conveyed plaintiff’s land in trust to secure his pre-existing debt to defendant. The plaintiff further avers that the defendant has had possession of the property, and has received rents and. profits to an amount unknown to plaintiff; declares plaintiff’s willing, ness to repay any sum that may be found due by him to defendant; he asks an account, etc. The objections which counsel for appellee make to the petition in their brief are, that it does not allege a legal tender by plaintiff of money admitted to be due to defendant; that plaintiff alleges that defendant is largely indebted to him for rents and profits, but does not state any amount; and lastly, that it does not show any diligence, or attempt to excuse his ignorance of the respective amounts of indebtedness. It is a general rule, that, where an infant has sold land, and, after attaining his majority, would disown the contract and recover back the land, he must tender the purchase money. Kilgore v. Jordan, 17 Tex., 341; Cummings v. Powell, 8 Tex., 81. This rule has generally been declared in favor of parties who have honestly dealt with the minor, believing him to be of full age. So where a stranger purchases the property of a defendant at an execution sale, and the defendant in the execution would set aside the sale for some vice therein, and recover the property, he must tender the purchase money. Howard v. Korth, 5 Tex., 290. But it is held that a fraudulent purchaser at such a sale is not entitled to the benefits of this rule. Freeman on Void'Judicial Sales, sec. 52, and cases cited. We need not, however, speculate upon the similarity of the defendant’s position to that of a fraudulent purchaser. The proffer to do equity made by appellant was, we think, sufficient, under the circumstances; and if bis allegations as to the amount of indebtedness were somewhat indefinite, the defendant probably had sufficient knowledge upon the subject not to stand in need of the information. We think the plaintiff was entitled to have a trial upon the facts. Our opinion is, therefore, that the judgment should be reversed and the cause remanded. Eeversed and remanded. [Opinion adopted May 4, 1883.]