Hobbs v. Nashville, Chattanooga & St. Louis Railway , 122 Ala. 602 ( 1898 )

SHARPE, J.

— The lands here involved not having been embraced or described in the petition filed in the condemnation proceedings, the commissioners appointed to assess damages therein were not authorized to include them in their report of such assessment, and the order of the probate court purporting to condemn them to the complainants’s use ivas corum non jndice and void.— Nashville, Chattanooga & St. Louis Railway v. Hobbs, 120 Ala. 600; 24 So. Rep. 933. Therefore,unless estopped by some act or conduct on the part of these defendants, or of some one authorized to bind them, there is no legal or equitable reason to unconditionally forestall their right to the possession of the property.

Ordinarily estoppels in pais are not created against infants, but cases may arise in which for the prevention of fraud or unfairness a court of equity may decree such an estoppel. Upon that principle it is well settled that no person, whether under legal disability or not, will in equity be permitted to receive and retain that which forms the consideration for an invalid sale or disposition of his property, and at the same time to retake the property to the prejudice of those who have in good faith acted upon the transaction as valid. — Robertson v. Bradford, 73 Ala. 116; Goodman v. Winter, 64 Ala. 410; Bland v. Bowie, 53 Ala. 152; Bell v. Craig, 52 Ala. 215; Pickens v. Yarbrough, 30 Ala. 408.

It does not follow, however, that the mere receipt of the consideration in such case will of itself bind the infant to part with his property. Nothing else appearing to preclude him in the assertion of his claim, the right of election whether to affirm the alienation, or to make restitution and reclaim the property, remains with the infant until his disability is ended and for a reasonable time thereafter, unless sooner compelled to elect by those having opposite rights who may resort to equity for that purpose. When its interference is sought in such case the court may elect for the infant with a view to his interest, but it will so decree as not to allow him the unfair advantage of avoiding the transaction while retaining its fruits. — Goodman v. Winter, supra.

The case is to be distinguished from those occurring Where the infant has received nothing of substantial value for the property, as in the case of Gillespie v. Nabors, 59 Ala. 441, in which the infants were allowed unconditionally to avoid the attempted sale.

The fact that the condemnation money was received by the guardian of defendants does not strengthen the reasons for decreeing an estoppel. A guardian, by virtue of his legal relation to an infant ward, has no authority to make or ratify for him an unauthorized disposition' of the infant’s lands. — Gillespie v. Nabors, supra.

It is charged in the bill that the defendant Mary Willie Hobbs was of full age when she received her share of the money paid by complainant. If, being of full age and without unfairness, she voluntarily received and retained the money with a full knowledge of the facts relating to the payment and to the condemnation proceedings, the complainant being in possession and no question of the statute of frauds arising, such action might upon proper allegations and proof be held a conclusive election on her part to treat the transaction as a sale of her interest to the extent that the probate decree purports to condemn the same.

The bill is wanting in allegations of facts which would in themselves be sufficient to establish . a conclusive estoppel against either defendant. It has equity, however, as a bill to require an election and a return of the money as a condition to their right to execute their judgment in ejectment. There is no specific prayer for that particular relief, but the sufficiency of the bill in that aspect is not brought in question either by the demurrer or the motion to dismiss.

The decree appealed from will, therefore, be affirmed at appellants’ cost. .

Affirmed.