Ellis v. Alford

Campbell, J., delivered the opinion of the court. The deposition of Mrs. Ellis was properly suppressed, Code, § 1601, but her husband is a competent witness, and his deposition should not have been suppressed. Wherefore we consider the case with his testimony as part of it. Thus considering it, we find the issue of fact against Mrs. Ellis on the charge that her father committed a fraud upon her in the exchange of real estate between them. The whole evidence falls far short of maintaining the grave charge made by the bill. It is opposed by many probabilities and not supported by any satisfactory evidence, while the clearest and most satisfactory is required in such a case. It is true that Mrs. Ellis was not quite twenty-one years of age and was a married woman when she made the conveyance to her father, but she remained in the possession and dominion of the land conveyed by her father to her up to the time of exhibiting her bill, and her disability as a married woman ceased November 1, 1880. Under these circumstances it is ancient law that she must be held to have confirmed her voidable act in making an exchange of lands [13] during her minority. “If an infant exchange lands, and after his full age occupy the lands taken in exchange, the exchange is become perfect, for the exchange at the • first was not void but voidable.” 1 Co. Lyt. (by Thomas) 205; 2 lb. 525. This just and wholesome doctrine has not lost any of its excellence by the lapse of centuries, and is still the law. Tyler on Infancy, etc., 540, § 40 et seq;; Brown v. Caldwell, 10 S. & R. 114; Wheaton v. East, 5 Yerger 41; Henry v. Root, 33 N. Y. 526, and cases cited; Bingham on Infancy 51; Schouler’s Domestic Rel. 588. Affirmed.