Cresinger v. Lessee of Welch.

Dec. Term,

1846.

held in possession, improved and cultivated. That with a IN BANK. knowledge of these facts, from a view to speculate by litigation with the tenants, Welch, for a small consideration, procured a deed to himself from the Luptons, who had never set up any claim to the premises after their deed to Kline, nor sought by any means to avoid their former conveyance. The deed, thus procured, forms Welch's whole claim of title; and the main question presented by the record, is, whether, under the existing state of facts, his title is better than the holder of the land in possession, and claiming under the prior deed of the Luptons.

The title of the Luptons, at the date of the first deed, is unquestioned. Supposing them to have been under age at the date of its execution, still that deed passed their title, and vested the fee in the grantee and his assigns, where it would remain until that deed should be legally avoided. "The deed of a 'minor is not void, but only voidable. It transmits the title to 'the grantee, and after vesting, it continues in the grantee until 'divested by some act of the maker of the deed." Lessee of Drake and wife v. Ramsey and others, 5 Ohio Rep. 251.

Bool v. Mix, 17 Wend. 130, where the effect of such conveyance is fully considered, and many authorities cited. No act is claimed to have been done by the Luptons in disaffirmance of the former deed, other than the mere execution of the subsequent deed to Welch. And unless the mere execution of the second deed could perform the twofold office- first, of reinvesting the Luptons with title; and secondly, passing it from them to Welch, he has no title.

The principal cases relied on to sustain Welch's title, are, Johnson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 Johns. 124; Tucker v. Moreland, 10 Pet. 58; Lessee of Drake and wife v. Ramsey and others, 5 Ohio Rep. 251..

These cases were all cited and examined in the latter case of Bool v. Mix, 17 Wend. 133; and the rule established by them · is thus stated by Chief Justice Bronson, delivering the opinion of the Court: "A deed of bargain and sale executed by an infant,

Cresinger v. Lessee of Welch.

Dec. Term, 1846.

IN BANK. ( 'may, under certain circumstances, be avoided by another deed ' of bargain and sale to a third person, after he becomes of age, 'that being an act of the same description and of equal noto'riety with the original conveyance."

Thus, it is seen, the rule is not universal in its application. It may operate "under certain circumstances." What these circumstances are, is to be learned from the cases. They are thus stated in Bool v. Mix, by Chief Justice Bronson, reviewing each case:

"It was said, in Jackson v. Carpenter, that the conveyance ' of the infant was not attended with all the solemnities of a 'feoffment and livery; and, that it might be defeated by an act of the same description and of equal notoriety. In holding that an entry was not necessary to avoid the deed, stress was laid on the fact that the land was vacant and uncultivated, and 'an entry would have been useless. In Jackson v. Burchin, 'the land was also vacant at the time the second deed was exe'cuted; and the Court say, the law does not require idle and nonessential ceremonies; and it would be idle to require an ' entry on the premises in 1795, when, not only this lot, but the 'whole country in which it was situated, was a wilderness. In Tucker v. Moreland, 10 Pet. 58, the infant had never been 'out of possession."

He then remarks: "If, in these cases, the land had been 'held adversely to the infant, the second deed would, I think,

have been void, and could not have amounted to a revocation of the first conveyance. This was admitted in Jackson v. 'Burchin. See, also, 13 Mass. Rep. 375."

Thus, then, the Supreme Court of New York, with the light of the former case before them, state the rule by which a subsequent deed amounts to a revocation of an infant's former conveyance, as existing, not universally, but under certain circumstances, viz: first, where the land is vacant, and actual entry impracticable; or, an idle ceremony, as in Jackson v. Carpenter, 11 Johns. 539, and Jackson v. Burchin, 14 Johns. 124; or, secondly, where the infant has never been out of possession, as in Tucker v. Moreland, 10 Pet. 58.

Cresinger v. Lessee of Welch.

Dec. Term,

1846.

Now it will be observed, that at the execution of the deed IN BANK. to Welch, the land was cultivated, improved, and was "held adversely to the infant." It is stated, moreover, by William Lupton, "Rezin Welch knew, at the time Cyrus and I sold him the land in Ohio, that we had before deeded and sold the 'same land to Mr. Kline. Rezin Welch mentioned to Cyrus ' and myself, at the time he bought the land of us, that he, Welch, was buying a lawsuit, and told us that there was five ' or six persons living on said land, and that he, Welch, expect'ed to have a great deal of lawing' to do before he would 'get possession of said lands." (Wm. B. Lupton's deposition in bill of exceptions.) These facts bring the case directly within the opinion expressed by Bronson, J.: "If, in these

cases, the land had been held adversely to the infant, the 'second deed would have been void, and could not have ' amounted to a revocation;" Bool v. Mix, 17 Wend. 133. The ground of the distinction, as explained by the whole case, seems just and reasonable. To constitute an estate in fee, there must be legal and actual seizin of the land. Where there is no actual adverse possession, as in the case of vacant and uncultivated lands, the actual seizin will be presumed to follow the legal seizin, and thus actual entry becomes useless ceremony. Where there is actual adverse possession, this presumption cannot be made, for presumptions can never be made against the established fact.

The same doctrine is established by other cases. In Worcester v. Eaton, 13 Mass. Rep. 375, it is said, by Chief Justice Parker, that the deed of an infant is 'not void, but voidable, so that the title will remain good to the grantee until the grantor shall lawfully disaffirm it. "He can only do it by entry; but having entered, his subsequent deed, accompanied by proof of 'facts tending to avoid the first, will convey a title. And the 'reason why, unless the first deed be thus avoided, no subse6 quent conveyance by the grantor can be good, is, because ' he would not be seized of the land;'" Worcester v. Eaton, 13 Mass. Rep. 375. So in Roberts v. Wiggins, 1 N. H. Rep.

1846.

Cresinger Lessee of Welch.

IN BANK. 73, it was said that, "in general, an infant, to avoid his deed, must reenter on the land and oust the occupant; or, if already in possession, must perform some act expressly evincing his intention to defeat the conveyance." In the latter instance, the mere execution of another deed, would amount to a disaffirmance, because the infant has actual seizin.

It is claimed, however, that by the case of Drake and Wife's Lessee v. Ramsey and others, 5 Ohio Rep. 251, the validity of Welch's deed is established. That was ejectment by the infant and her husband. It was not a suit by a third person, claiming disaffirmance by the mere execution of a deed, while the lands were in adverse possession; the questions were, within what time the infant's deed might be disaffirmed, and whether it might be done by action. An ejectment was held to be sufficient disaffirmance, and the Judge delivering the opinion. remarked: "We believe that an entry, suit, or action, a subsequent conveyance, an effort to restore parties to their original 'condition, or any act unequivocally manifesting the intention, 'would render the avoidance effectual; and that the institution

6

of their suit is an act fully possessing that character." It is apparent, therefore, that the case of Drake and Wife's Lessee v. Ramsey, cannot be considered an authority directly supporting Welch's deed; because the facts are not the same, the mode of disaffirmance being totally different. The most that can be claimed is an intimation of opinion, an obiter dictum. But even that is not warranted; for the judge does not say that the modes of disaffirmance enumerated by him are of universal validity. Nor does he undertake to distinguish, except in the case then before the Court, under what circumstances any specific mode may operate as a disaffirmance. He by no means intimates even an opinion that a subsequent conveyance would operate to disaffirm the prior contract, and also vest the estate in a third person, where there is adverse possession under the former deed.

The question is, therefore, open to this tribunal. Since Drake and Wife v. Ramsey was decided, the questions here

Cresinger v. Lessee of Welch.

Dec. Term,

1846.

involved have been examined and elaborately discussed, in IN BANK. Bool v. Mix, 17 Wend.; and the opinion sanctioned by the Supreme Courts of New York, Massachusetts, and New Hampshire, that where the land is held adversely, at the execution of a subsequent deed, the mere execution of such deed is not sufficient to disaffirm a former deed by an infant, under which the tenant is in possession, and vest the estate in a third person; but such subsequent deed is itself void. This opinion is founded, moreover, in the general principles and theory of the law, and not contradicted by any authority.

“

Second: The deed to Welch is void on the ground of maintenance.

In some States, deeds made by parties out of possession of lands held adversely, are prohibited by statutes, declaring the instruments void, and imposing penalties upon the parties. In Ohio, no such statute exists, but the rule of the common law prevails; 13 Ohio Rep. 175. In Indiana, there is no such statute; and there it has been repeatedly held, that a deed for real property, if there be an adverse possession at the time, is void; Fite v. Doe, 1 Blackf. 127; Martin v. Pace, 6 Blackf. 99; Bowman v. Wathen, 2 McLean, 380, In Fite v. Doe, the Court remarks: "We have no particular statute prohibiting the buying and selling of pretended titles, and, therefore, ' reference must be had for the doctrine to the common law of England, which is adopted into our code. The law undoubtedly is, that if a person, out of possession, convey to a 'stranger land held at the time adversely by another, the conveyance is void as an act of maintenance."

In Martin v. Pace, 6 Blackf. 99, it was held, that if a person, out of possession, convey land held adversely by a third person, the conveyance is void on the ground of maintenance, and the title remains in the grantor. It is remarked by the Court: "The persons who claimed the land could have nothing

more than a right of entry, the land being held at the time 'adversely by another; and it is a principle of the common law, that such a right is not assignable." Co. Litt. 266;