Elliott v. Horn

ORMOND, J. The land in controversy was purchased of the United States, by James Cobb, Avith his OAvn money, but entered at the land office in the name of his son John, then an infant of tender years, for the purpose of defrauding his creditors, he being then greatly embarrassed. This transaction is declared, by the 2d section of the statute of frauds of this State, to be utterly void, not only as to creditors, but as against subsequent purchasers, embracing the substance of the provisions of both the 13th and 27th of Elizabeth. In respect to the 27th of Elizabeth, the English decisions are uniform, that a voluntary conveyance, although without fraud, will be set aside in favor of a subsequent purchaser for a valuable consideration, though he had full notice of the previous voluntary conveyance. [Townsend v. Windam, 2 [352] Ves. 10; Doe v. Rutledge, Cowp. 711; Fonblanque’s Eq., Book 1, c. 4, § 13; Roberts v. Anderson, 3 Johns. C. 376.] In this case, however, ' the purchase by the father, in the name of the son was fraudulent, as well as voluntary, and according to the established current of decisions, would be void as against subsequent, as well as existing creditors. See this question discussed by Ch. Kent, in Reade v. Livingston, 3 Johns. C. 500. So that whether the purchaser from the father, who was also a subsequent creditor, be. considered as a creditor, or as a purchaser with notice of the previous voluntary conveyance to the son, the result under our statute of Lauds is the samp. We may therefore dismiss from the consideration of this question, all the arguments founded upon the relative situation of these parties, father and son. Ordinarily, this does raise the presumption that the purchase was intended as advancement to the child, and it devolves on one asserting a resulting trust in the father,' to establish it. But here, as the intention was to defraud creditors, as against them, and subsequent purchasers from the father, the purchase in the name of the son is a void act, and the effect as to them, is precisely the same as if the land had been entered in the name of the father, instead of the son. The only difficulty presented by the case arises from the fact, that as the fraudulent entry was made in the name of the son, the patent of the government, the highest evidence of the legal title, issued to the son, and this brings up the question of law, arising upon the two deeds executed by John Cob'b, one whilst he was an infant, made at the instance of his father, under which the plaintiffs in error deduce their title, and the other after he came of full age, under which the defendant in error claims. It may be conceded, that generally the deed of an infant, whether it be a deed of bargain and sale, operating by virtue of the statute of uses, or any other conveyance recognizedfby our law as a valid transfer of lands, would be disaffirmed, and rendered inefficacious by a subsequent conveyance, made on his attaining majority. But this must certainly be confined to those cases where the infant has a valid title to the lands so conveyed. That was the case of Hoyle v. Stowe, 2 Dev. & B. 322, so earnestly pressed in argument. There [353] an infant had, by deed of bargain and sale, conveyed his land during his minority, and subsequently on his coming of age, by a similar deed conveyed it to another. The court held the first deed to be voidable by the infant, on his attaining his majority, and that the making of the subsequent deed, avoided the first. It is perfectly obvious, the case just cited, has but little, if any, resemblance to this. Here the infant, though the legal title was cast upon him, by the fraudulent conduct of his father, had no right to the land against a creditor, or purchaser; when therefore, he conveyed to the purchaser from his father, he merely parted with the naked title, and only did that, which a court of equity would have compelled him to do, and we are unable to perceive any reason for permitting him, by adisaffirmance of this act, to reinvest himself with the title, to be again deprived of it. We do not understand the law to be, that every act of an infant, though it be by deed, is voidable at his election, on his attaining his majority. It is an ancient maxim of the common law, that “generally, whatsoever an infant is bound to do by law, the same shall bind him, albeit he doth it without suit of law.” [Co. Litt. 172, a; 1 Thos. Coke Litt. 205.] This point was so determined in the great case of Zouch v. Parsons, 3 Burr. 1801. That was the case of an infant mortgagee, in whom the title was vested, who, upon the payment of the mortgage debt to the persons entitled to receive it, made a re-conveyance of the land, and the court held, that as this was an act, which by law he could be compelled to perform, his voluntary performance of it, though during minority, should bind him, and he could not afterwards disaffirm it. We are aware that this celebrated judgment has been the subject of some critical animadversion, on account of some of the general positions advanced by Lord Mansfield. The true point of the case has never been seriously questioned, but is admitted to be law, by the highest authority at the present day. In Tucker v. Moreland, 10 Peters, 67, the decision is approved. The court say, “ if was precisely such an act as the infant was bound to do, and would have been compelled [354] todo by a court of equity, as a trustee of the mortgagors, and certainly it was to his interest to do it.” So in the case of Hoyle v. Stowe, previously cited from 2 D. & B. 322, whilst condemning some of the general propositions of Lord Mansfield, as too sweeping, it is admitted by the court, that the case was correctly decided. So also Chancellor Kent, in summing up the doctrine upon this difficult and vexed question, says, “ The doctrine of the case of Zouch v. Parsons, has been recognized as law in this country, and is not now to be shaken.” See also, 1 Mason, 82; Whiting v. Dutch, 14 Mass. 467; Bingham on Infancy, ch. 2.] Upon this difficult question, what acts of an infant are absolutely void, voidable at his election, or binding on him, though made during infancy, we desire to be understood, as confining ourselves to the precise case before us, which is, that of an infant doing an act which' it would have been his duty on arriving at full age to do, and which by law he could have been compelled to do. Such an act, though performed during infancy, is binding on him, and cannot be afterwards disaffirmed. Upon the other point of the case, we incline to the opinion, that there is no difference between an infant and an adult as to the right to convey a title to land held adversely to the grantor. That a conveyance by an infant, accompanied by a possession held adversely to him, though it may be avoided when he attains his majority, yet he cannot by his deed convey this title to another, so as to invest him with the right to sue in his own name for its recovery. But we waive the decision of this point, as the other is decisive of the ease'. Let the judgment be reversed and the cause remanded-