Edmunds v. Mister , 58 Miss. 765 ( 1881 )

Chalmers, C. J.,

delivered the opinion of the court.

^/Robert H. Edmunds, a young man of handsome estate, became of age on the 12th of July, 1859. He was already burdened with debts, contracted by him during minority, amounting to about $2,000, and on the 19th of March, 1860, without having theretofore done anything either in affirmance or in disaffirmance of these debts, he executed and placed on record a deed whereby he conveyed the bulk of his estate, real and personal, to his infant daughter, then two months of age, for and during the term of her natural life, leaving the reversion in himself. He declared at the time that he intended by the act to defeat the holders of claims contracted during his minority, as to the estate conveyed; but that he was unwilling to plead minority, and intended to pay the debts. How he was to pay them does not appear, nor did he then declare, though he now says that he intended to do so out of his wife’s estate.

Edmunds continued to become more and more involved, until his total indebtedness finally amounted to more than $9,000. Suits were eventually brought against him by his various creditors, and in these suits no attention seems to have been paid to any distinction between his debts, as to whether they were contracted before or after majority, or before or after the date of the conveyance to the daughter. It is certain, however, that the debts contracted between his arrival at majority and the date of the conveyance (a period of eight mouths) were trifling. The suits all ripened into judgments, no plea of minority having been interposed in any of them. Under sales made by virtue of these judgments, defendants have held the lands now sued for, during many years. The plaintiff is the daughter of Edmunds, to whom, when she was two months old, he conveyed a life-estate in the property, and she brings this action of ejectment to recover the lands and mesne profits. The conveyance to her is older ■ than the judgments through which defendants claim, but, being voluntary, is fraudulent and void if the holders of the demands against Edmunds for goods furnished during minority were legal creditors at the date of the conveyance. At the time the goods were furnished, Edmunds had a guardian ; and in discussing the question at issue we shall assume, as indeed the law does in the absence of proof, that they were not necessaries in contemplation of law, nor furnished under such circumstances as that their reception, of itself, imposed a legal liability upon him. The executory contracts of infants for the payment of money, not for necessaries, impose no legal liability upon them. They furnish a sufficient consideration to support contracts thereafter made, so that if ratified in any way after majority they will be enforced ; but they derive their vitality, not from the original consideration, but from the new promise or ratification. They can be ratified at common law only by an act or agreement which possesses all the ingredients necessary to a new contract, save only a new consideration. The contract made during minority will furnish the consideration, but it will furnish nothing more. All else must be supplied by the new agreement. A mere acknowledgment of the debt is not sufficient, but there must be an express promise to pay, voluntarily made; and this is true under the common-law authorities, without reference to the provisions of our statute, which declares that the new promise or ratification must be in writing. Code 1857, p. 360, art. 8. !

There cannot be said to be any contract in any legitimate sense of the term until after the act of ratification, or until after the written promise under our statute. Before ratification, it is wholly unilateral in its bearing; that is to say, the consideration has been advanced by the adult, but there is no corresponding legal liability upon the minor. It stands, not upon the footing of a debt barred by the Statute of Limitations and afterwards revived by a new promise, because in such a case there has always been an existing, unextinguished right, since limitation affects only the remedy, and not the right; but it is rather like a debt wiped out by a discharge in bankruptcy. In such case there is no existing debt, but there is an outstanding consideration which will support a new contract. This is the illustration used in Hodges v. Hunt, 22 Barb. 151, and in Taft v. Sergeant, 18 Barb. 320. It is an anomaly in pleading that the plaintiff declares upon the original contract, and to a plea of infancy replies the new promise, while all the authorities declare that the recovery is not upon the original contract, but upon the new promise ; and yet undoubtedly the anomaly exists. While this is true, it is clear that if the declaration should set out the whole facts, — that is, if it showed that the articles were furnished to a minor, that they were not necessaries, and that there had been no new promise, — it would be demurrable ; or if judgment by default was taken upon it, it would be reversed upon appeal. The reason is that it would show no cause of action, and it would show no cause of action because of the absence of a new promise. It is the new promise, therefore, that makes the debt, and without it there is none. Tyler on Inf. & Cov., sect. 46 el seq., and authorities cited.

It follows, from these well-settled principles, that the holders of claims against Edmunds which were for articles, not neces'saries, furnished during minority and not ratified after majority, were not legal creditors at the date of his conveyance, and cannot predicate fraud of it, though it was voluntary.

If defendants can show that the judgments through which they hold embraced, in whole or in part, debts created after the attainment of majority, and before the date of the conveyance, or were in whole or in part for necessaries furnished during minority, under circumstances which imposed a legal liability upon the infant, they can successfully resist plaintiff’s demand, but the burden of doing this rests upon them ; and while there is something to suggest that -debts-contracted after the disability of minority had ceased, and before the execution of the conveyance, may have entered into some of the judgments, this does not clearly appear. The ruling of the court below rendered any such showing upon the part of the defendants unnecessary.

The learned judge, adopting the view that minority was a ■personal privilege, which could not be set up by any one but the minor, and that he could only do so by pleading it when sued, excluded all testimony as to the debts having been contracted during minority; and this was at once an end of plaintiff’s case.

• He confounded therein the executed and the executory contracts of infants, and seems to have been partly, at least, led into this error by the course of counsel, who respectively contended, the one, that the making of the deed to the daughter was a disaffirmance of the minority debts, and the other, that it was not. But it is not a question of disaffirmance, but of affirmance. Executed contracts of infants must be disaffirmed or they will become obligatory ; executory contracts must be affirmed or they will be null. Until affirmed, they impose no liability. There was no pretence of affirmance here, and no act of disaffirmance was necessary.

True, when sued, Edmunds failed to plead minority, and judgments went against him. From the rendition of those judgments, and not until then, the claims of the creditors became valid debts against him ; but he had several years before made the conveyance to his daughter, and it was not possible for him, by then making the debts valid, to affect the title previously conveyed. It is well settled that suffering judgment to go upon a debt barred by the Statute ofXimitations will not affect the title to property sold before judgment, and after the bar was complete; and a fortiori must this be true as to minority debts, which have no binding force until judgment.

Whether, the principle would apply, as to the Statute of Limitations, where the conveyance was unsupported by a valuable consideration, we have-not found settled by adjudication ; but certainly it must as to the unratified minority debts of an infant, since as to them there is no legal indebtedness.

Neither the research of counsel nor our own has discovered any adjudicated case similar in its facts or wholly analogous in principle to the one at bar; but we feel satisfied that the general principles controlling the liabilities of infants must lead to the conclusion here reached.

Appellant contends that, even though the debts of her father were valid, and the conveyance to herself voluntary, the presumption of fraud is rebutted by the fact that he had abundant property outside of the conveyance with which to pay his debts; and seeks to establish this by showing that the reversion in the property, which was left in himself, was worth many thousands of dollars, the estimate being made upon the expectancy of life of an infant of two months of age; and also upon the fact that the father had other property, such as two riding-horses, cattle in the range, milk cows, gathered and unsold cotton, jewelry, wearing apparel, and provisions on hand, which in the aggregate exceeded in value the sum total of his debts.

We cannot adopt this view. In the first place, if the debts of the father were valid .debts, this would not be a case of fraud in the conveyance, implied in law from its voluntary character, but rather of a conveyance expressly declared by the grantor to be made with the intention and purpose of defeating his creditors, and it could not, therefore, be upheld by showing a retention, by the debtor, of other property ; and in the second place, if it was a case of fraud presumed by law from the voluntary character of the conveyance, that presumption could not be rebutted by showing the retention of the reversion in the grantor, where all his visible, tangible property is nominally conveyed to another for life, but is really left in his own possession and enjoyment; nor by showing the retention of other property, unless such other property was undoubtedly sufficient to pay all debts, and readily and plainly accessible to the creditors. The property here retained, outside of the reversion, — r which, under the circum-■ stances of this case, must be left out of view, — was evanescent in its character, easily disposable by the debtor, and difficult of being reached by the creditor, if attempted by the debtor to be secreted or sold. It does not come up to the standard laid down in the case of Wilson v. Kohlheim, 46 Miss. 351.

There were two trials of this case in the court below. In each of them the court erroneously excluded all the more important portions of plaintiff’s testimony, and by its instructions to the jury announced principles of law not in accordance with those here announced. On the first trial, the jury, despite this action, and in disregard of the instructions of the court, found a verdict for the plaintiff, which was by the court set aside ; to which action the plaintiff excepted. The áecond jury, more mindful of the rulings of the court, and of their duty of receiving and conforming their action to its instructions as to the law, found a verdict for defendants. We are asked now, in reversing the judgment on the second verdict, to reestablish the first, and enter here a judgment upon it. Ordinarily, we would do this, — that is to say, whenever the first verdict was right upon the case as it went to the jury, and the order of the court in setting it aside was erroneous, —but we cannot do so in the present case. . Here, the first verdict was not correct; but, on the contrary, was clearly wrong on the case as it went to the jury, all the more important parts of plaintiff’s testimony having been by the court excluded, and the jury having no right to disregard the instructions of the court as to the law. There was nothing, therefore, to support that verdict, and if there had been an appeal directly from it to this court, we would have been compelled to set it aside. We could not consider the truth of the testimony which was proffered and rejected, as having received the sanction of the jury, nor could we ignore the fact that, if it had been received, it might have been shown to be false, or avoided by proof of further facts which would have rebutted it. To reestablish the verdict and enter a judgment upon it would be to punish the defendants for making ill-founded objections to evidence, by conclusively presuming that the proffered testimony was true, and that there existed no further facts which would have avoided its effects, however true it might be. The rule of reestablishing a verdict erroneously set aside is applicable to a case where the verdict is right on the facts in evidence, and not to one where the jury has leaped over errors of law on the part of the court, aud arrived at what might, perhaps, have been a correct verdict if no error of law had occurred. Many assignments of error are made in this court. We do not notice them seriatim, because it is believed that the principles which must control the case are sufficiently indicated.

Judgment reversed and new trial directed.