Jefford's Adm'r v. Ringgold & Co.

COLLIER, C. J. 1. If the declaration be defective foi; the cause supposed, it was certainly obnoxious to the defendants’ demurrer to the replication, ft is said the consequences of a mis-joinder are more important than the circumstance of a particular' count being defective; for in the case of a misjoinder, however perfect counts may respectively be in themselves, the'declaration [547] ■will be bad on general demurrer, or in arrest of judgment, or upon error. [1 Chitty’s Plead. 3d Am. ed. 206, and cases there cited.] We will not undertake to examine, with particularity, each of the counts of the declaration in the case before us, to as-cei'tain whether, separately considered, they each disclose a good cause of action. The conclusion of the declaration very explicitly-indicates that the plaintiffs themselves regard the first count as imposing a liability upon the defendant in, his representative character; and by the three latter, they seek to-enforce a-recovery in his own right, lor promises which they suppose subject him to a personal charge. Now, although it may be allowable to join promises by a testator or intestate, and an executor or administrator, on a -contract or liability made or incurred’ by the deceased in his lifetime; yet it is apprehended, that no case can be found in which it has been permitted to recover in the same action against a personal representative upon a demand with which he is chargeable as such, and also upon one which binds him individually. There would of necessity be two judgments in such case, entirely dissimilar; in the one, the assets of the estate of the deceased would be charged; while in the other, the estate both real and personal of the defendant would be subjected to its payment. This, of itself, would be quite sufficient, if there were no other reason, to show the impropriety of thus declaring. [Sibbil & Lloyd v. Borden, 6 Hals. Rep. 163; 2 Lomax’ Ex’rs, &c. 271, et post.] It results from this view, that the declaration, considered as entire, is bad; and that it should have been so adjudged on demurrer. 2. It is laid down generally, that infancy is a personal privilege to be taken advantage of by the infant. [6 Dane’s Ab. 132; Van Bramer, et al. v. Cooper, 2 Johns. Rep. 279; Hartness, et al. v. Thompson, et al. 5 Johns. Rep. 160; United States v. Brainbridge, 1 Mason’s Rep. 78.] But although the right to avoid a contract, on the plea of infancy, is said be personal, yet it is held, that one who legally represents an infant, as an executor or administrator, may avail himself of it. [Beeler v. Bullit, 3 A. K. Marsh. Rep. 280; Smith v. Mayo, 9 Mass. Rep. 62; Hussey v. Jerett, 9 Mass. Rep. 100; 2 Kent’s Com. 236, and cases cited.] And upon principle, it would seem this should be the law; as executors and administrators represent, in all matters in which the personal estate is concerned, the person of the deceased» They [548] have the same property in the chattels of their testator or intestate, as he himself had when living, and in general sueceed to his rights of action, and are subject to his liabilities, at least to the extent of assets received. [2 Steph. Com. 243.] This being the case, the second plea of the defendant may be assumed to have been well pleaded; and the question, then, is, does the replication set up sufficient matter of avoidance. It cannot be denied, that the contract of an infant may be ratified by him after he attains his ma-, jority. [Borthwick v. Carruthers, 1 T. Rep. 649; Cohen v. Armstrong, 1 M. & S. Rep. 724; Thornton v. Illingworth, 2 B. & C. Rep. 824.] But it is insisted, that in order to make the ratification by his administrator available, it must be founded upon some new consideration. It is said to have been once supposed, that an executor was chargeable in his right only, where an action was brought against him on promises made after the testator’s death. But modern decisions determine, that an executor or administrator may be sued, as such, on a promise made by him in his representative character; and that he will only be chargeable to the same extent, as he would on the testator’s promise. [2 Lomax’s Ex’rs, &c. 272.] The statute of frauds, in order to malee him liable out of his own estate, requires that the promise should be in writing; the decisions are, not only that it should be in writing, but founded upon a sufficient consideration. [Clay’s Dig. 254; 2 Lomax’ Ex’rs, &c., 273-4-5.] A promissory noté, such as that declared on, when made by an infant, is not absolutely void, but merely voidable, and as it is presumable it is founded upon a valuable consideration moving from the payee, the maker after he attains his majority, may by a verbal promise, impart to it validity. Such promise will be effectual, because it only makes that a legal duty, which was before a moral obligation. [Goodsell v. Myers, 3 Wend. Rep. 479; Willard v. Stone, 7 Cow. Rep. 22; Everson v. Carpenter, 17 Wend. Rep. 419; Dockery v. Day, 7 Porter’s Rep. 518; 4 Kent’s Com. 236; Wright v. Steel, 2 N. Hamp. Rep. 51; McCrilles v. Howe, 3 N. Hamp. Rep. 348; Orvis v. Kimball, id. 314.] But if the infant, instead of ratifying his contract after he becomes twenty-one years of age, disaffirms it, it is, as it respects the other party, entirely at an end, and he becomes re-invested with a right to whatever he had parted with as an inducement to the infants undertaking, and may reclaim it as if the property had never pass549 edfrom him. [Badger v. Phinney, 15 Mass. Rep. 359.] This being the case, as a question of sheer interest, to say nothing of the obligations of moral duty, it must frequently be for the advantage of one who enters into a contract during infancy, not to avail himself of his minority in order to avoid it. If then the promissory note of an infant, is only voidable at his election, it may be for the interest of creditors and distributees, and results .from the necessary discretion with which executors .and administrators are vested, to permit his personal representative to fore-go the defence of infancy. And in order to make his ratification binding upon the estate, we can perceive no reason why he should receive a new consideration. The note, it is presumed, was given for something equivalent to the sum expressed upon its face, and its non-payment furnishes a sufficient consideration to support the administrator’s promise made in that character. It has been held that an executor or administrator is not bound to plead the statute of limitations, and that ho may re-affim the liability of the estate he represents,- by a promise to pay. [Greening, ex’r, v. Brown, Minor’s Rep. 353; Bond v. Smith, 2 Ala Rep.] By parity of reasoning, it would seem, that he need not set up the plea of infancy; more especially if his success, instead of benefiting, would really prejudice the estate. The fact that the intestate died during his minority, cannot impair the powers of his administrator; the law recognizes no distinction between the representative of an adult and an infant; and though the latter could not bind himself but in certain excepted cases, the authority of his administrator is none the- less extensive for this case. From this reasoning, it results that the replication was a good answer to the plea, and the demurrer, so far as it was concerned, properly overruled. 3. It is not objected that the notice to produce the deed was given to the attorneyinstoad of the defendant himself. The act of 1818, expressly declares, that in all cases pending before any of the courts of record, written notice to the attorney of record, shall be as valid and legal, to all intents and purposes, as if served on the party in person. [Clay’s Dig. 337, § 137.] The cases cited by the plaintiff in error upon this point, do not sustain him, they rather show that it is difficult, if not impracticable, to lay down a precise rule, as to what notice to produce a writing is necessary,in order to let in secondary evidence of its contents. If the [550] party to whom the notice is given, has had pringa facie sufficient time to produce the paper, and is still unable to do so, if he is unwilling that its contents should be proved by parol, he may apply for a continuance; but air objection at the trial, that the notice was too short to enable him to co'mply with it,' would be listened to with little favor. The notice in the present case, we think, was entirely sufficient. It was given several days previous to. the sitting of the court; how long before the trial does n'ot appear.— The plaintiffs might very well have inferred that the defendant had placed in the hands of his attorney or resident agent, all the papers relating to the cause; and upon this hypqthesis, the plaintiffs are not chargeable with neglect. But upon the first point considered, the judgment of the county court is reversed,, and the cause remanded.