Edgewood Highland Land Co. v. McFerren

PELHAM, J. — The instrument executed by appellee, under the terms of which he made certain payments to appellants, being a lease (Heard v. Heard & Lee, et al., 41 South. 827), the real question presented by this appeal is whether the appellee, a minor at the time of entering into the lease agreement and making payments under its provisions, upon disaffirming the contract can recover the amount of rent paid by him to the appellant during the continuance of the contract, while he (the minor) was in possession of the property. There is quite a distinction recognized by all of the best considered authorities on the subject, between the liability and responsibility of an infant for his obligations when being sued upon arriving at majority, for the purpose of enforcing contracts made by him, and the right of the infant to recover from him to whom he has paid something for which he has received a valuable consideration. As an illustration, it may be said that, if the infant purchases expensive clothes or other articles not necessary, the tradesman selling these things [278] could not enforce payment in a suit against the infant for the purchase price; yet if the infant had paid for the merchandise, and has the use and benefit derived from their possession, he would not be permitted to retain the tradesman’s wares and recover from him the price paid. — Cope v. Overton, 10 Bing. 252; Parsons on Contracts, 332. And so, recognizing the distinction above referred to, it was held in the early leading English case of Holmes v. Blogg, 8 Taunt. 508 (s. c., 2 Moore 552), that, where an infant when he came of age avoided a lease contract by disaffirmance, he could not recover the payment made by him under the terms of the lease during infancy as rent, when it was shown that he was in possession of and occupied the property during part of the period covei’ed by the lease agreement for which the payment was made. It .is not to be questioned that an infant caxx disaffirm a lease contx’act as to that part which is unperformed, and that no recovery can be had oxx that part of the coxxtract remaining executory; but the recovery is sought by the plaintiff in this case, as is shown by the pleading and proof, for money paid the defendant during infancy and before disaffirmance for rent of the property during the period that the property was in possession of the plaintiff. The payments having been made for the rent of the property while in possession of the plaintiff,- the contract or lease, as to that part, became executed. Each installment of rent paid during the period the property was retained in the possession of the plaintiff was in effect an execution of the lease agreement pro tanto, and while, as a general rule, an infant xnay avoid his contracts of every kind, whether beneficial or . not, and whether executed or executory, we do not think that upon attaining the age of majority an infant can dis279 affirm his lease, and be allowed to recover rents paid by him for tbe period during which be was in possession of tbe property before repudiation. — See 16 A. & E. Enc. of Law (2 Ed.) p. 290; 22 Cyc. p. 580, notes 75 and 76; 1 Taylor on Landlord and Tenant (9th Ed.) § 96; 2 Kent’s Commentaries, p. 240; Aldrich v. Abrahams, Lalor’s Supp. (N. Y.) 423; Johnson v. N. W. Mut. Life Ins. Co., 56 Minn. 365, 59 N. W. 992, 26 L. R. A. 187, 45 Am. St. Rep. 473. Tbe rulings of the trial court on the pleadings and in tbe finding made and judgment rendered are pointedly in conflict with our bolding as above expressed, and a reversal of tbe case must necessarily follow.. Reversed and remanded.' Note. — Tbe judgment of tbe Court of Appeals in this case was, by tbe Supreme Court, reversed and rendered in tbe case of Eos parte H. H. McEerren, 63 South. 159.