Robinson v. Hoskins.

CASE 41-PETITION ORDINARY-DEC. 7.

Robinson v. Hoskins.

APPEAL FROM TAYLOR CIRCUIT COURT.

1. PURCHASE OF PROPERTY BY AN INFANT IS RATIFIED BY HIM BY A SALE THEREOF after arriving at age.

If a purchase is made during infancy, and the thing purchased is kept and used by the infant until his arrival at age, and then converted to his own use, such conduct amounts to an election by the adult to stand by the contract made while he was an infant, and renders his plea of infancy unavailing.

D. G. MITCHELL AND J. R. ROBINSON FOR APPELLANT.

1. When an infant avoids a contract for personalty he must restore the consideration. (Bailey v. Barnberger, 11 B. Mon. 115; see also 1 J. J. Mar. 246; 1 Dana, 45; 7 Bush, 410; 6 Bush, 473; Newman's Pl. and Pr., p. 371.

JUDGE ELLIOTT DELIVERED THE OPINION OF THE COURT.

Appellee purchased a horse of appellant in 1875, and when he was under twenty-one years of age. He arrived at age and sold his horse for $60, for which he took the note of the purchaser. In this suit for the price of the horse appellee relied on two defenses, fraud in selling an unsound for a sound horse, and infancy at the time of the purchase.

If the defense of fraud had been established, the appellee would have been entitled to have the damage which resulted therefrom deducted from the price of the horse.

If the plea of infancy were sustained, that defense was a bar to the action, unless the appellee converted the horse or kept it and used it as his own property after he arrived at age.

In Tyler on Infancy and Coverture, p. 82, it is asserted that "where an infant purchased a horse, and gave his note for the purchase-money, and kept the horse until after he was of age, and then sold him, this was regarded as a ratification of the purchase, and the infant was held liable on his note; so

Robinson v. Hoskins.

if an infant buy goods on credit, and has them in his possession, and uses them, and does not return them to the vendor within a reasonable time after he comes of age, it has been held that he thereby ratifies the purchase and becomes liable for the price of the goods. So where an infant purchased a yoke of oxen, for which he gave his negotiable promissory note. After he became of age he disposed of the oxen and received the avails. This was held a ratification of the purchase, and the infant was made liable to pay his note."

It is true that the plaintiff can not sue upon the defendant's promise made after he was of age to pay the debt incurred during infancy, unless such promise is evidenced by a writing, but if the purchase is made during infancy, and the thing purchased has been kept and used by the infant till his arrival at age, and then converted to his own use, such conduct amounts to an election by the adult to stand by the contract made while he was an infant.

The reasoning upon which this doctrine rests is, that the contract of the infant is not void like that of a feme covert, but is only voidable. And having used, sold, and converted after his arrival at age, the property purchased during his infancy, he has, in contemplation of law, elected when an adult, to keep the property at the price, and on the terms agreed on when he was an infant.

The evidence in this case conduces to prove that after his purchase of the horse the appellee sold it and took the purchaser's promissory note for $60 as the purchase-price, which note was still in appellee's possession and unpaid in October, 1877. And these facts were substantially set up in plaintiff's reply, to which a demurrer was sustained. The reply alleged that the appellee became of age in January, 1876, and sold and converted the horse by receiving the purchaser's promissory note for it.

If after his arrival at age the appellee sold and converted

Franks v. Lucas.

the horse, his conduct amounted to a confirmation of the original agreement, and needed no written promise to support it. And therefore the court erred in sustaining appellee's demurrer to appellant's reply.

Wherefore the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.

CASE 42-PETITION EQUITY-DEO. 7.

Franks v. Lucas.

APPEAL FROM OWEN CIRCUIT COURT.

1. THE HOMESTEAD EXEMPTION RIGHT EMBRACES TWO ADJOINING TRACTS OF LAND, when the dwelling-house of the debtor is situated on one of them and the fee-simple value of both does not exceed $1,000.

If the homestead right embraces land in which the debtor holds a lifeestate the fee-simple value is estimated in setting the same apart. 2. IF THE OWNER OF A HOMESTEAD RIGHT, EMBRACING TWO TRACTS OF LAND, EXECUTES A MORTGAGE ON THAT TRACT ON WHICH HIS DWELLING-HOUSE IS SITUATED, he does not thereby waive his homestead right in the other, and the latter can not be subjected by a creditor while the debtor occupies the former as his homestead.

J. W. PERRY AND O. B. HALLAM FOR APPELLANT.

The homestead law exempts so much land, including the dwellinghouse and appurtenances, as shall not exceed $1,000 in value. (Gen. Stat., sec. 9, art. 13, chap. 38.) This does not limit the right to one tract or to a fee-simple title. It embraces any title or estate less than a fee-simple. (See Gardner v. Smith, &c., 10 Bush, 245.)

STROTHER & ORR FOR APPELLEE.

14bu395 103 756

14bu395 116 755

14bu395 116 758

14bu 335 123 842

1. The homestead right is limited to the tract on which the actual dwelling-house is situated. (Miles, &c. v. Hall, &c., 12 Bush,

105;

Jar

boe, &c. v. Colvin, &c., 4 Bush, 73.)

2. When the owner of a homestead right mortgages the land on

Franks v. Lucas.

which his dwelling is situated, and the mortgage is enforced, leaving no surplus, he is thereby precluded from claiming any homestead right in an adjoining tract.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

The debtor Franks owns a life-estate in fifty acres of land, on which is situated his dwelling, occupied by himself and family, and he owns, in fee, an adjoining tract containing thirty-three acres. The aggregate value of a fee - simple in both does not exeed $1,000.

He and his wife united in mortgaging his interest in the fifty acres to Green to secure a debt of less than $300. The appellee sought to subject the thirty-three acre tract to the payment of a debt due to him by Franks, and the circuit court having adjudged against Franks, he has appealed.

Counsel for the appellee cite Jarboe v. Colvin, 4 Bush, 70, Miles v. Hall, 12 Bush, 105, in support of the judgment.

In the former case it appears that Jarboe owned three contiguous tracts of land. His dwelling - house was situated on the middle tract, and he mortgaged that tract so as to waive the homestead exemption, and then claimed a homestead in one of the other tracts, and this court adjudged against him.

That decision does not, however, as counsel seem to suppose, rest on the ground that Jarboe's land consisted of three tracts derived from different vendors. The ground of the decision is this:

By the terms of the statute "so much land, including the dwelling-house and appurtenances, as shall not exceed in value $1,000," is exempted. The statute does not allow a homestead out of the tract or body of land owned by the debtor, and leave to the debtor or the court or officer to assign it out of any part of the tract or of several adjacent tracts, but provides that it shall be out of that part on which the dwelling-house and appurtenances are situated. The statute having declared that the exemption shall be of $1,000 worth

Franks v. Lucas.

of land, including the dwelling, when the debtor makes a mortgage of that part of his land on which the dwelling and appurtenances are situated, and the land embraced in the mortgage is worth $1,000 or more, whether his land consists of one tract or of several contiguous tracts, the exemption is gone, because it has been waived as to the only land to which the statute applies. (Hansford v. Holdam, ante p. 210.)

The land mortgaged by Jarboe sold for $1,781.84, just enough to satisfy the mortgage-debt, thus showing that the mortgage embraced the entire homestead.

But in this case the two tracts being contiguous, constituting one farm, and being worth in the aggregate not exceeding $1,000, the mortgage to Green only embraced a part of the homestead. Before the mortgage was executed it is clear that the appellee could not have subjected any part of either tract to sale to satisfy his debt, and it is not perceived how any part of either can have become subject on account of its execution. It was not made for his benefit, and as long as Franks continues to reside on the fifty acres and to be a housekeeper with a family both tracts are exempt from coercive sale by any creditor, except Green, and he can only subject the tract embraced in his mortgage.

In Miles v. Hall we decided that the homestead could not be extended over on to a tract adjoining that on which the dwelling was situated, not, however, because it was a different tract, but because the tract including the dwelling was of the value of $1,000.

So much of the judgment as directs the sale of the land not embraced by Green's mortgage, to satisfy appellee's debt, is reversed, and the cause is remanded with directions to dismiss so much of the petition as seeks to subject it.