IN BANK Dec. Term' 1845. -Cresinger v. Lessee of Welch. JOHN CRESINGER VS. LESSEE OF REZIN WELCH, The sale and conveyance of land by one out of possession, the land at the time being in the adverse possession of another claiming title, is not void. Where an infant conveys land, and after his arrival at full age, conveys the same land to a third person, such subsequent conveyance is a disaffirmance of the former conveyance. Where an infant conveys land, mere lapse of time, after he arrives at full age, will not amount to a confirmation unless after twenty-one years. But lapse of time for a less period, in connection with other facts and circumstances, may amount to confirmation. In such case, the grantor is not bound to refund or offer to refund the purchase money before he disaffirms the contract. The Supreme Court will not review on error the ruling of the Court of Common Pleas, in charging or refusing to charge upon an abstract legal proposition not appearing by the record to be necessarily involved in the case. THIS case comes before the Court by WRIT OF ERROR to the Court of Common Pleas of COLUMBIANA County. The original action was ejectment for the north half of section 33, in township 17, range 5, in Columbiana county. On trial of the case to a jury, a verdict was returned in favor of the plaintiff, now defendant in error, and a judgment entered accordingly. To reverse this judgment, this writ of error is prosecuted, and the errors complained of appear from a bill of exceptions tendered by the plaintiff in error and allowed by the Court on the trial. The bill of exceptions is as follows: Be it remembered, that on the trial of this cause, the plaintiff, to support the issue on his part, gave evidence that the north half of section 33, township 17, range 3, was patented by William B. Lupton, and that he died in 1815, leaving three sons, Elisha F. Lupton, Cyrus C. Lupton and William H. Lupton. He further gave in evidence, the deed filed, marked A, from Cyrus C. Lupton and William H. Lupton, for their undi Cresinger v. Lessee of Welch. vided interest in the land, to Rezin Welch, the plaintiff's lessor, IN BANK. dated April 15, 1843. He also gave evidence tending to show that Cyrus C. Lupton was born on the 6th day of May, 1812, and that William H. Lupton was born on the 14th day of January, 1815, and, also, the evidence of Martha Lupton, that the consideration from Kline was horses, but whether there was money besides, the witness did not know. Elisha had the horses in his own hands, and she does not know of his having given any of the proceeds of the horses to Cyrus and William, and does not believe he did, and she believes she would have known it if they had received any. The defendant, on his part, gave in evidence, a deed filed, marked B, from Martha Lupton, (the widow of William B. Lupton,) Elisha F. Lupton, Cyrus C. Lupton and William H. Lupton for the said north half of section 33, township 17, range 5, to Peter Kline, which deed was regularly executed, acknowledged and recorded, and dated on the 20th September, 1832. They also gave in evidence, subsequent deeds from Kline to Heslep, and from Heslep to Jennings, for the same premises, which are filed, and marked C and D. They also gave in evidence, a deed for the premises in dispute from Jennings to Coy, filed, marked E; and subsequent conveyances from Coy to Smith, and Smith to Cresinger, the defendant, filed, marked F, G. The defendant also gave in evidence, that $1,000, the consideration expressed in the deed, B, to Kline, was, at the time, a full, fair consideration for the land, which was, at the execution of said deed, wild and uncultivated; that the subsequent purchasers went on to the land, cleared, cultivated, improved and occupied the same under their respective deeds. That the defendant, Cresinger, went and farmed and improved the land, and was in actual possession and occupation of the land from the date of his deed until at and after the execution of Cyrus and William Lupton of the deed to Welch. Dec. Term, 1846. IN BANK. Cresinger v. Lessee of Welch. They further gave in evidence, the deposition of William H. Dec. Term, Lupton, filed, marked G. 1846. There was no evidence offered on the part of the plaintiff, of any act or expression by Cyrus and William, or either of them, disaffirming their deed to Kline before the execution of the deed to Welch, nor of any claim or demand of possession, nor of any entry on the land, or notice to the tenants, prior to the beginning of this suit and service of declaration in this Nor was there any evidence of any return or offer to return the consideration money received from Kline. cause. But evidence was offered on the part of the plaintiff, tending to show that, at the execution of the deed to Kline, Cyrus and William Lupton resided in the city of Baltimore, and continued to reside there until after the date of the deed to Welch, nor was there any evidence of their having been within the State of Ohio at any time after the date of the deed to Kline. And the defendant asked the Court to charge the jury First: That if a person under the age of twenty-one years, but above the age of discretion, and apparently twenty-one years of age, represents himself to be of that age, and thereby induces another person to purchase land from him, take a conveyance and pay the purchase money, or part of it, the party making such representation is estopped from claiming back such land and proving that he was not of age, if the purchaser believing such statement acted upon it, paid the purchase money accordingly, and has in his conduct been perfectly fair and honest in the transaction; which instruction the Court refused to give, but charged that such was not the law. The defendant further asked the Court to charge Second: That the purchase by Welch, and receiving a deed from persons out of possession of lands which are in actual adverse possession of persons claiming title, is an act of champerty and maintenance, illegal and void; which instruction the Court refused to give, and charged that such was not the law. They further asked the Court to charge Third: Cresinger v. Lessee of Welch. That the deed to Welch is not such an instrument IN BANK. Dec. Term, as that its mere execution, without further act, would amount 1846. to a disaffirmance of the prior deed by Cyrus and William ; which instruction the Court refused to give, but charged that such was not the law. They also asked the Court to charge as to disaffirmance — Fourth: Where lands are cultivated and held in actual adverse possession under a deed made during minority, that deed cannot be avoided by the mere execution of a subsequent deed to a third person, after the minor comes of age, without some prior expression or act done to disaffirm the conveyance, as entry, claim or demand of possession, notice of disaffirmance to the tenant, or suit brought to recover possession: but such subsequent deed is of itself void, conveying no title; which instructions the Court refused to give, and charged that such was not the law. They also asked the Court to charge Fifth If the Court should deem such prior act unnecessary, and that a minor's deed may be disaffirmed by the mere execution of a subsequent deed, yet they are asked to charge: That lapse of time, less than twenty-one years after the minor comes of age, may furnish evidence of acquiescence and confirm the title; to which request, the Court answered and charged, that lapse of time, less than twenty-one years, was not of itself evidence of acquiescence, but might be evidence of such acquiescence in connection with other facts and circumstances. They also asked the Court to charge Sixth: That the right to disaffirm a deed made during minority, may be extinguished: 1. By any act done under a knowledge of his right, which demonstrates a willingness to be bound by the contract; or, 2. By continuing, after acquiring such knowledge, to enjoy any benefit, profit or privilege, under the contract, after they attained full age. To which instructions the Court answered and charged – IN BANK. Dec. Term, 1846. Cresinger v. Lessee of Welch. That such was the law, but that retention of the purchase money in this case was not of itself an act demonstrating a willingness to be bound by the contract, and that a minor was not bound to return or offer to return the purchase money, before disaffirming his deed made during minority. They further asked the Court to charge Seventh That the silence of the party after coming of age, might be evidence of acquiescence and confirmation, although for a less period than 21 years after coming of age. To which the Court answered and charged That silence for a less period than twenty-one years, was not, of itself, unless connected with other facts and circumstances, evidence of assent to, or confirmation of a deed made. during minority. To all which rulings and charges, the defendant, by his counsel, excepts and prays the Court to sign this, his bill of excep-. tions, which is accordingly done, and made part of the record in this case. Upon this record, including the bill of exceptions, the following errors are assigned: 1. That the Court erred in refusing to charge the jury as prayed for by said plaintiff in error 2. That the charge given by the Court was not the law of the case. 3. That the judgment was given in favor of the defendants in error, when by the law of the land it should have been given in favor of the plaintiff in error. Umbstarter & Stanton, for Plaintiff in error. First: It appears by the bill of exceptions, that on the 20th of September, 1832, the lands in dispute, then wild and uncultivated, were sold and conveyed for valuable consideration by the Luptons to Kline. That between that time and the 15th of April, 1843, a period exceeding ten years, they passed by five intermediate conveyances, to persons by whom they were |