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Catlin v. Haddox.

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In Edmunds v. Mister, 58 Miss., 765, decided in 1881, CHALMERS, C. J., in giving the opinion of the court says:“ The executory contracts of infants for the payment of money, not for necessaries, impose no legal liability upon them.

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.

A mere acknowledgment of the debt is not sufficient, but there must be an express promise to pay, voluntarily made. * * 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 the limitation affects only the remedy and not the right; but it is rather like a debt wiped out by a discharge in bankruptcy."

The citations that we might make to the same effect are very numerous, but the above will suffice. They are directly applicable to the case under consideration, even if we accept the plaintiff's claim that the finding should be construed as in effect giving him the benefit of part payment. But at most this is the only fact to sustain the plaintiff's claim that the contract was ratified. The burden of proof was on him to establish the ratification and nothing can be assumed in his favor that is not found expressly or in effect. It cannot therefore be assumed either that the note was given for necessaries, or for a consideration that remained within the control of the defendant after she became of full age.

The case upon the finding, construed in the most favorable light for the plaintiff, cannot be brought within any

of the classes of cases referred to that allow a ratification by anything short of an express promise to pay the debt.

It is not necessary for us to consider any other question made in the case. We advise the Superior Court to render judgment for the defendant.

In this opinion the other judges concurred.

NOTE. The text books and decisions make the distinction, which is remarked upon in the foregoing opinion, between the acts which are suffi.

Cake o. Peet.

cient to ratify the contract of an infant where the consideration of his promise has been received by him and remains in his possession or under his control, and the acts necessary to constitute such a ratification where the fact is otherwise, and apply to the infant's contract the terms "executoryand executed” as expressing this distinction; and one of the text writers quoted gives as an illustration of an executed contract the case of “a purchase of land or goods," where the infant ' after becoming of age continues to hold and treat the property as his own;" while another, speaking of the rule that a voidable contract of an infant can not after his coming of age be ratified by a mere acknowledgment of the debt, says that “such at least is the rule applicable to his executory contracts.The court in the foregoing opinion, while noticing this distinction, does not use the same terms.

These terms are not accurately used. Where an infant gives his note for land or other property purchased, his contract is not an executed one. It is an executory contract on an executed consideration. Every contract of an infant that needs to be enforced by a suit is an executory one. An illustration of his executed contract would be his payment for the property purchased at the time of the purchase, instead of the giving of his note. Here there would be nothing to enforce against him on his becoming of age. If he should decide to avoid the contract, and attempt to recover back the money, this would be his own suit and not a suit against him; and the court would not allow him, while keeping the consideration, to recover back the money. The distinction is not therefore between the executory and the executed contracts of an infant, but between the cases where the consideration of the infant's executory contract is itself executory and those where it is executed; with the further distinction stated by the authorities between the case of an executed consideration which the infant retains and has the benefit of after becoming of age, and the case of such a consideration having passed out of his possession or control before he became of age.

R.

49 50 66 350

JOHN A. CAKE vs. GEORGE W. PEET.

Where the language of a deed fails, by mistake of the draftsman, to

properly describe the property intended to be conveyed, a court of

equity can reform it. A deed, after describing particularly certain lands in S, proceeded as

follows:-“ Also all such other lands as I own or have any interest in in said S, reference being had to the land and probate records.” Held that, upon proof that the grantor agreed and intended to convey by the deed an interest in an ore bed in S wholly disconnected from the lands described, and that both parties supposed the language used sufficient for

Cake v. Peet.

that purpose, a court of equity would so reform the deed as to make it

include that interest. Whether that interest would have passed under the deed as it was: Quære. And held that proof of the grantor's declaration at the time, that he

intended to convey his interest in the ore bed and desired the deed to be so drawn as to convey it, was admissible in support of an application for

a reformation of the deed. And held that the relief could be granted, under the Practice Act, in an

action brought against the grantee to recover possession of the interest in the ore bed, with mesne profits, upon his answer alleging the necessary facts and praying for the relief.

CIVIL ACTION to recover possession of an interest in an ore bed and for mesne profits; brought to the Superior Court in Litchfield County, and reserved, upon the defendant's answer and a finding of the facts, for the advice of this court. The case is sufficiently stated in the opinion.

C. B. Andrews and J. A. Cake, for the plaintiff.

H. B. Graves, for the defendant.

PARDEE, J. On June 25th, 1864, John Adam conveyed to the defendant by deed containing covenants of seizin and warranty a piece of land situated in the town of Salisbury, describing in detail the location and boundaries thereof and the number of acres therein. The succeeding paragraph of the deed is in these words :—“Also, all such other lands and real estate as I own or have any interest in whatever, situated in said Salisbury, reference being had at all times to the land records of said Salisbury and to the probate records for the district of Sharon, for a more particular description of the same.” On that day the grantor was the owner of .one undivided sixth part of a piece of land containing about two acres, known as the Adams-Chatfield Ore Bed, situated in the town of Salisbury, about six miles distant from the land described in the first paragraph. He had acquired title thereto by distribution under the order of the court of probate for the district of Sharon from the estate of Samuel Forbes, his grandfather. In the year 1872 the defendant, claiming to have obtained

Cake v. Peet.

title to the grantor's interest in this last mentioned piece of land by virtue of the second paragraph of the deed, received and has hitherto retained as his own the sum of $2,646.31, paid by sundry parties for the privilege of digging and carrying therefrom iron ore, and other sums in like manner for each succeeding year up to and including the year 1879; all aggregating about $8,000.

The grantor died some time after the deed was given, but the date of his death is not stated. The plaintiff as one of his heirs is entitled to an undivided part of the grantor's interest in the ore bed if he died the owner thereof. He therefore alleges in his complaint that on the first day of January, 1871, he was the owner and possessor of an undivided interest in the ore bed; that the defendant then wrongfully entered thereon, and dispossessed him; and that he had continued such dispossession to the date of the complaint, taking the rents and profits to himself. He claims judgment for possession and damages. The case is reserved for the advice of this court.

In Herman v. Deming, 44 Conn., 124, several persons united in signing a mortgage deed which specifically described the location and boundaries of several pieces of land, some of which belonged to one and some to others of them. This descriptive paragraph was followed by another in these words :—“Also all such other lands as we, the grantors, or either of us, own or have any interest in, situated in the town of Canaan; reference being had to the land and probate records for a more particular description of the same." Upon a petition for foreclosure this court held that these general words imposed no lien upon land not otherwise specified or mentioned, not adjacent to or in any way connected with either of the parcels described ; reserving the question as to the sufficiency of such a description in a deed intended to convey title, for determination when it should arise.

The plaintiff insists that the deed in question conveyed no title to the demanded land.

The defendant in his answer says that the grantor sold

Cake v. Peet.

and intended to convey it to him; that he paid a valuable consideration for it; that immediately upon the execution of the deed he took and has since retained possession of it as his own; and while insisting that the deed in its present form conveys title, from abundant caution he asks leave to reform it, if it does not, by the insertion of a more particular description. And under this prayer and the allegations of his answer, he offered parol evidence upon the trial for the purpose of proving that, at the time the deed was drawn and executed, the grantor declared to the scrivener that he intended by it to convey to the defendant his interest in the ore bed as well as in the farm on which he resided, and desired such a deed to be drawn as would carry out that purpose. The plaintiff objected to this evidence. The questions—does the deed in its present form convey title? if not, is the offered evidence admissible for the purpose of reforming it? and what judgment shall be rendered ? are reserved for the answer and advice of this court.

It is of course the duty of courts to see that the ascertained intention of parties to contracts is carried into effect, at least as between them and those who represent them, if no insuperable legal barrier prevents; and courts of equity in numberless instances have supplied words to, taken them from, and corrected expressions in, written agreements, that they might speak the intent of the parties; and this upon parol proof if it be made entirely satisfactory. In Henkle v. Royal Assurance Co., 1 Ves., 314, Lord HARDWICKE said :“No doubt but this court has jurisdiction to relieve in respect of a plain mistake in contracts in writing, as well as against frauds in contracts; so that if reduced into writing contrary to the intent of the parties, on proper proof that would be rectified.” In Stedwell v. Anderson, 21 Conn., 139, it is said: _“When property has been conveyed through mistake, by deed, which the parties never intended should be conveyed, which the grantor was under no legal or moral obligation to convey, and which the grantee in good conscience has no right to retain, a court of chancery will interfere and correct the mistake, whether it arose from a misapprehen

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