Cresinger v. Lessee of Welch. Dec. Term. 1846. IN BANK. any benefit to any one, or could have been any thing but a most idle and ludicrous ceremony? The defendant claims that the deed to Welch was a sufficient act of avoidance, and sufficient to pass the title of the shares of Cyrus and William in the land to Welch. The case of Drake and wife v. Ramsey et al., is claimed to be directly in point. The Court, in this case, lays down with great clearness what acts will constitute an avoidance of a deed, made by an infant during minority, when he comes of age. The Court says, that an entry, suit or action, a subsequent conveyance, an effort to restore the parties to their original condition, or any act unequivocally manifesting the intention, would render the avoidance effectual. It appears to have been the intention of the Court to settle the question, and lay down such landmarks as could easily be understood. There had been great uncertainty as to what acts would constitute an avoidance; and, to put the matter at rest in this State, the Court, in deciding whether an entry was necessary before suit, laid down what acts would constitute a disaffirmance of a former deed, made by an infant. This is not a hasty decision, but is one of great consideration, and every principle that it contains is fraught with the plainest principles of common sense. What more than a subsequent conveyance, to avoid a minor's deed, can be required? It is an unequivocal manifestation of an intention to avoid the former deed. It is an act of equal notoriety and solemnity with the first deed. It is an act of greater notoriety than entry; for entry may be made, unknown to the tenant in possession, whereas a subsequent conveyance is a matter of record. The law of feoffment requires only an act of equal notoriety. Surely our law will not require more. In the 2d of Dev. & Battle, 320, the same question was fully examined, and the decision, in the case of Drake and wife v. Ramsey, fully sustained. See, also, 2 Kent's Com. 237, notes a, b and c. Cresinger v. Lessee of Welch. Dec. Term, 18-16. It is further claimed by the plaintiff in error, that, even if a IN BANK. subsequent conveyance is a sufficient act of avoidance, yet it cannot be sufficient to avoid the former deed, and at the same time pass the title. But, in the cases in 11 and 14 Johns. Rep., it is held that the subsequent deed is sufficient for both purposes. Fifth It is claimed by the plaintiff in error, that the Court erred in charging the jury, that lapse of time, less than twentyone years, was not of itself evidence of acquiescence, but might be evidence in connection with other facts and circumstances.. To sustain this objection, reference is made to Drake and wife v. Ramsey et al., 5 Ohio Rep. 152. It is difficult for us. to perceive any substantial difference between the charge of the Court upon this point, and the opinion of Judge Lane. Both agree that lapse of time, less than twenty-one years, does not amount to acquiescence; but that lapse of time, less than twenty-one years, in connection with other facts and circumstances, might be evidence of acquiescence. The jury were virtually told, that the simple fact that ten or eleven years had elapsed after the minor came of age, before his deed was avoided, was not, of itself, an affirmance of the deed; that it was a fact which might aid in establishing an affirmance, when taken in connection with other facts and circumstances, lapse of time, less than twenty-one years, did not constitute acquiescence, is a principle decided and established, and was not a question for the jury to decide. Whether there were other facts and circumstances, which, taken in connection with the lapse of time, amounted to acquiescence, was a question which they had a right to determine, and was properly submitted to them. That In holding that lapse of time, connected with other circumstances, might be evidence of acquiescence, and thus confirm the title, the Court went farther than any of the leading cases in other States upon the subject. In Jackson v. Carpenter, 11 Johns. Rep. 542, the Court held, that an acquiescence by the grantor for eleven years, after he came of age, "did not IN BANK. Dec. Term, 1846. Cresinger v. Lessee of Welch. ' amount to a confirmation of that conveyance; that some positive act was necessary, evincing his assent to the con'veyance." In 10 Peters, 76, Mr. Justice Story refers to 11 Sergeant and Rawle, 311, where the Court held, "that to constitute a 'confirmation of a conveyance or contract by an infant, after 'he arrives of age, there must be some distinct act, by which ' he either receives a benefit from the contract after he arrives ' at age, or does some act of express ratification;" and of that decision, and the one in 11 Johns. Rep. 542, says, "there is 'much good sense in these decisions, and they are indispensable to a just support of the rights of infants, according to the 'common law." In the sixth place, it is claimed by the plaintiff in error that the Court erred in charging the jury, "that the retention of the purchase money in the case was not, of itself, an act demonstrating a willingness to be bound by the contract." ( It was not a question for the jury to determine, whether the retention of the purchase money was, or was not, evidence of affirmance. The law is perfectly well settled, that a minor is not bound to return the purchase money before disaffirming his deed, made during minority. 10 Peters' Rep. 74. The counsel do not even claim that such is not the law, but only that the question should have been left to the jury, to determine whether it was evidence of affirmance. If the law is, that retention of the purchase money is not an affirmance, surely it was right for the Court so to charge the jury. In this case, by reference to the testimony of Mrs. Lupton, it will appear that there was, probably, no part of the purchase money retained by the minors. The same remarks may be applied to the seventh objection as to the fifth, as they are one and the same. The evidence from lapse of time and silence was not, in any manner, excluded from the jury. It was all before them; and they were, as we think, properly instructed as to the effect which they had a right to give to it. We think the judgment of the Court of Common Pleas should be affirmed. Cresinger v. Lessee of Welch. Dec. Term, 1846. HITCHCOCK, J. The several facts of this case, as exhibited IN BANK, in the bill of exceptions, are, that William B. Lupton, in the year 1815, died seized of the premises in controversy. On the 20th of September, in the year 1832, Elisha F. Lupton, Cyrus C. Lupton, and William H. Lupton, all of Baltimore, in the State of Maryland, and heirs of said William B. Lupton, conveyed the same land to Peter Kline, of Trumbull county, by deed duly executed. The plaintiff in error claimed title under conveyances from Kline. At the time of the conveyance to Kline by the Luptons, Cyrus C. and William H. were infants, within the age of twenty-one years. The defendant in error claimed title under a deed executed to his lessee, by Cyrus C. and William H. Lupton, on the 15th of April, 1843, conveying to him their interest in the premises. He also gave evidence as to the consideration paid by Kline, and conducing to prove that payment was made to the brother, who was of full age; and further, that his grantors were citizens and residents of the State of Maryland. In order to ascertain whether the Court of Common Pleas committed any error in the charge complained of, it will be necessary to examine particularly what that Court was requested. to charge, and what they did actually charge. First: The Court was requested to charge, "that if a per'son 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 per'son to purchase land from him, take a conveyance, and pay the purchase money, or part of it, the party making such ' representations 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 ac'cordingly, and has in his conduct been perfectly fair in the 'transaction; which instruction the Court refused to give, but 'charged that such was not the law." 6 It will be seen from an examination of the bill of exceptions, that no evidence had been given to the jury conducing to prove Cresinger v. Lessee of Welch. Dec. Term, 1846. IN BANK. that the two younger Luptons, or either of them, had, at the time of the conveyance to Kline, represented themselves as being of full age, thereby inducing him to purchase the land, nor that he acted upon any such belief. This, then, was a mere abstract proposition, entirely out of the case; and if the Court were mistaken upon the point of law, it would make no difference in the result. Under such circumstances, we never interfere with the judgment of an inferior court. We would not be understood as saying that here was any mistake; .but if there was, it was in a matter upon which the plaintiff had no right to ask the instruction of the Court. Second: The Court were next asked to charge the jury, "that the purchase by Welch, and receiving a deed from persons out of possession, of lands in the actual adverse possession of persons claiming title, is an act of champerty and maintenance, illegal and void." This instruction the Court refused, and charged that such was not the law. t The question here presented is not one which now comes before the Court for the first time. It is well known that, in England, a sale and conveyance of land by a person out of possession of land, the same lands at the time being in the possession of another, claiming title, would be void, as being against the policy of the law. Whether this is a principle of the common law, or whether it is based upon some statute, is a question which has been much controverted. But this is a matter of little consequence, so long as such is the law. In many, probably in most of the States of this Union, the same principle prevails; but in this State the decisions have, from the earliest period of our judicial history, been different, and such sales and conveyances have been held to be valid.. This identical question was before this Court in the case of Hall et al. v. Ashley et al., 9 Ohio Rep. 96; and the title acquired under such circumstances was held to be good. The case referred to is the first brought before the Court in Bank, in which this question was agitated, and the decision was merely in affirm |