Johnston v. Furnier

The opinion of the court was delivered, January 9th 1872, by Sharswood, J. The first error assigned is to the rejection by the court below of an offer of the defendant to prove by the records of the Court of Common Pleas of Westmoreland county, “ that at the time of the death of David Furnier, his land was largely encumbered by judgments against him, which were paid by Robert Johnston, after his marriage with the widow of David Furnier; also by judgments against his personal representatives after his decease, which were paid by Robert Johnston.” Before proceeding to the consideration of this assignment, it will be proper to notice a preliminary objection which has been made to it. It is said, that it infringes the well-settled rule of practice of this court, which requires that, whenever there is a bill of exceptions taken to the exclusion of any written evidence, a copy of the document offered must be attached to the bill, in order to enable the court to judge of its relevancy: Gratz v. Gratz, 4 Rawle 411; Stafford v. Stafford, 3 Casey 144 ; Aiken v. Stewart, 13 P. F. Smith 30. The rule is a necessary one, and must be adhered to in all cases to which it is properly applicable. But this is not the case when the offer is to prove the mere fact of the existence of a judgment or judgments in the same court, by the production of the original records. The very documents offered could not be attached, and to require full copies would be a burdensome and unnecessary expense. Nor is it within the reason of the rule, for it is not necessary that the entire record should be inspected to determine the question whether the existence of judgments was or was not relevant to the issue. We are of the opinion that the offer thus made was relevant and ought to have been admitted. David Furnier died in 1807, [454] leaving a widow and three children. By his will he devised one-third of his real estate to his widow for her life, and the residue to his children. He nominated his widow to be his executrix, and letters testamentary were accordingly issued to her. She subsequently intermarried with Robert Johnston. Many years after-wards, in 1822, a family arrangement was entered into for the settlement of his estate. To this arrangement General Joseph Maride, the guardian of Bowman Eurnier, the plaintiff below, was a party. Three neighbors were appointed as referees, who reported that being of opinion that Robert Johnston had paid considerable amounts of the debts of David Eurnier, they gave it as their advice and opinion that Robert Johnston should have and enjoy the farm commonly called the Campbell farm, with a part of the Beasel place, allowing the Orphans’ Court of said county to order proper measures to obtain a legal title thereto, and that the mill and tract of land, with the balance of the Beasel tract, should in the same way be assured to the three children. In accordance with this award, Robert Johnston and wife, by deed, April 1st 1828, released all her estate and right in the land agreed to be assured to the children. By a deed of the same date, the children, except Bowman Eurnier, conveyed their interest in the other land to Robert Johnston. Bowman Eurnier seems at this time to have been of age, but did not join in the deed. The parties went into possession of their respective parts, and subsequently, by a deed, acknowledged April 20th 1833, Bowman Eurnier joined his sisters and their husbands in a sale and conveyance of the part allotted to them to Solomon Speers for and in consideration of the sum of ¡¡>1800. This deed recited the partition and settlement, as it is there termed, of 1822, and the release of Robert Johnston and wife in pursuance thereof. This action of ejectment against the son of Robert Johnston for the tract allotted to him, was not commenced until June 1869, nearly forty-seven years after the settlement, referred to, and more than eighteen years after the death of the widow of Eurnier. Such family arrangements, if fair and equitable in themselves, after so long an acquiescence, ought not to be disturbed, and such acquiescence will be strong evidence of a ratification by the ward of the act of his guardian,In Hume v. Hume, 3 Barr 144, where by just such a family arrangement a dispute respecting an obscure will was submitted to men, it was held that twenty-eight years’ acquiescence and enjoyment of land under it, interposed a strong obstacle to any attempt to set it aside by an infant who had not avoided it when he came of age. “It could only be voidable,” said Mr. Justice Sergeant, “by the infant on coming of age, and here he has acquiesced.” It was very important then for the defendant below to show that this was a just and equitable settlement, and this he proposed to do by proving that Robert Johnston had paid a large amount [455] of the debts of David Furnier. In regard to these debts, which were secured by judgments in the lifetime of David Furnier, they continued to be liens on his real estate at the time of the settlement, if not then actually satisfied. The referees reported that they had examined the vouchers produced by Robert John-stone to show the payments made by him. Under such circumstances and after so long an acquiescence, the jury would have been fully justified in finding a ratification by Bowman Furnier of the agreement entered into by his guardian. But we think the court below ought not only to have admitted this evidence, but to have gone further, and instructed the jury that Bowman Furnier, by his deed to Solomon Speers, absolutely ratified and confirmed the partition of 1822. He conveyed the share allotted to him and his sisters clear of his mother’s life-interest in one-third, she being then living, reciting her release and the award and settlement of 1822. He received his one-third of $1800, the full value of the land unencumbered by her title to one-third. A partition by an infant, even if unequal, is only voidable by him when he comes of age, and not void. If he take the whole profits of the unequal part after his full age, the partition is made good for ever: Co. Litt. 171 b. So, if he continues in possession of land received in exchange: 2 Vermont 225. “If any act of confirmation,” says Chancellor Kent, “ be requisite after he comes of age, to give binding force to a voidable act of his infancy, slight acts and circumstances will be a ground from which to infer the assent:” 2 Com. 237. Leases by a guardian which endure beyond the minority of the ward, are not void, but only voidable, and may be confirmed by his acceptance of rent accruing after he comes of age: Bingham on Infancy 170; Smith v. Low, 1 Atk. 489. The authorities upon this subject are fully examined by Mr. Justice Duncan, with his usual learning and ability, in Brown v. Caldwell, 10 S. & R. 114, and it was there held that if consentable lines are fairly made between adjoining tracts by the guardian of an infant, if the infant do not dissent when he comes of age, but acquiesces, he is for ever bound. See also Hill v. Roderick, 3 Penna. Law Jour. 417. Now, what can be a more unequivocal and conclusive assent and ratification by an infant after majority of a partition made by his guardian, than a sale and conveyance of the land allotted to him, clear of the encumbrance which would have otherwise attached to it, reciting the very partition as valid which he now claims to avoid ? Upon this view of the law, as applicable to the facts, it is of course unnecessary to examine the remaining assignments of error. Judgment reversed, and venire facias de novo awarded.