
    Everett G. Graves v. James P. Hickman.
    (Case No. 4155.)
    1. Equitable relief.— See statement of this case for facts pleaded by one whose disabilities were removed, in a proceeding to which he was not really a party, and which were held sufficient to authorize a recovery of his property conveyed by bis father, under power of attorney from him, to satisfy a pre-existing debt of the father.
    2. Same — Tender.— In such a proceeding, when the petition avers a willingness to repay all sums of money expen 'ed for the plaintiff, averring ignorance of the true amount, and asks an account between the plaintiff and the purchaser, it is sufficient without the necessity of making a formal tender of a speo.fic sum.
    Appeal from Bexar. Tried below before the Hon. Geo. H. Hoonan.
    Suit by appellant against appellee to cancel a conveyance of land. The petition stated in substance that plaintiff was the owner of five-eighths undivided interest in homestead property in the city of San Antonio, and that his father, B. L. Graves, owned the remaining three-eighths; that in October, 1874, E. Graves was a minor and about eighteen years old, and was at school in the state of Indiana; that B. L. Graves, the father, was about that time largely indebted to Hickman; that Hickman and B. L. Graves concerted and arranged together to have the disabilities of non-age removed from E. G. Graves, for the purpose of thereafter inducing E. G: Graves to pledge his interest in the homestead property to secure a large and pre-existing debt due Hickman by B. L. Graves; that, in accordance with the prearranged plan, a petition was filed in the district court of Bexar county, praying that the disabilities of non-age of E. G. Graves be removed, and that the district judge did, on the 12th day of October, 1874, remove the said disabilities. Petition further charged that proceedings in the district court of October 12, 1874, were not made and instituted by E. G. Graves, or by any one authorized to represent him; that on the 20th of October a power of attorney was received and signed by E. G. Graves, constituting B. L. Graves his attorney in fact to control, sell or pledge the land claimed in the petition; that E. G. Graves was inexperienced and unacquainted with business matters, and did not know, nor did the power of attorney state, how much B. L. Graves was owing Hickman ; that under that power of attorney B. L. Graves signed the name of E. G. Graves to a note payable to Hickman for §7,500, and a deed of trust to secure the same, on the property claimed in the petition; that the property was about to be sold under this deed of trust. Petition further stated that E. G. Graves did not know how much, if any, of the $7,500 was used by B. L. Graves for the benefit of petitioner, and expressed a willingness to repay all of the-money that was used for his benefit; prayed that an account be stated between Hickman, who, it alleged, received all of the rents, issues and profits of the property since the deed of trust was executed, and E. G. Graves; petitioner further prayed for an injunction, and for general relief; and in the alternative, for the interest of B. L. Graves to be sold first, etc.
    General demurrer, which was sustained.
    
      Green & Walthall, for appellant,
    on the nullity of the judgment removing disability, cited Mitchell v. Bunkle, 25 Tex. Sup., 136; Bates v. The Bank, 8 Port., 99; Barry v. Patterson, 3 Humph., 313; Levert v. The Bank, 8 Port., 104; Hamilton v. Hurman, 3 Yerg., 355; Macnara on Nullities, p. 137.
    1 A formal tender was unnecessary. Kilgore v. Jordan, 17 Tex., 355-6; Womack v. Womack, 8 Tex., 417; Cummings v. Powell, 8 Tex., 93; Overton v. Blum, 50 Tex., 417.
    
      Simpson & James
    
    cited Daniels’ Ch. Prac., 365-7; Story’s Eq.. Pl., sec. 255; Mitford’s Eq. Pl., 133.
   Delany, J. Com. App.—

Our opinion is that there is error in the judgment of the court below.

We must suppose that the act of October 24, 1871 (Pasch. Dig., 7002-4), regulating the removal of the disabilities of minors, was-passed in the interest of persons oi that class. It certainly was not intended to aid strangers, or the relatives of the minor, to get possession of his property without the delay and inconvenience of probate proceedings. And we may suppose that in any proceeding before the district court under this act, it would be made to appear to the court that the promotion of the minor’s interest was the only motive to the proceedings. If the real purpose was not to benefit the minor, but to divert his property to the uses of others, then a fraud was practiced upon the court, and at the same time a great wrong done to the minor.

The demurrer admits the allegations contained in the petition to be true. They are not set forth with the distinctness and certainty which ought to be found in a petition asking for equitable relief'; but no objection is made on that ground. The petition sets forth that, in the year 1874, R. L. Graves was largely indebted to the defendant ; that plaintiff was not bound, in any way for that debt; that at that time, when the plaintiff was only eighteen years of age, and was wholly ignorant of matters pertaining to the transaction of badness, and while he was absent from the state, the defendant, knowing all these facts, concerted with R. L. Graves to procure the removal of plaintiff’s disabilities; that they immediately thereafter obtained from plaintiff a power of attorney, by virtue of which said E. L. Graves conveyed plaintiff’s land in trust to secure his pre-existing debt to defendant. The plaintiff further avers that the defendant has had possession of the property, and has received rents and. profits to an amount unknown to plaintiff; declares plaintiff’s willing, ness to repay any sum that may be found due by him to defendant; he asks an account, etc.

The objections which counsel for appellee make to the petition in their brief are, that it does not allege a legal tender by plaintiff of money admitted to be due to defendant; that plaintiff alleges that defendant is largely indebted to him for rents and profits, but does not state any amount; and lastly, that it does not show any diligence, or attempt to excuse his ignorance of the respective amounts of indebtedness. It is a general rule, that, where an infant has sold land, and, after attaining his majority, would disown the contract and recover back the land, he must tender the purchase money. Kilgore v. Jordan, 17 Tex., 341; Cummings v. Powell, 8 Tex., 81. This rule has generally been declared in favor of parties who have honestly dealt with the minor, believing him to be of full age. So where a stranger purchases the property of a defendant at an execution sale, and the defendant in the execution would set aside the sale for some vice therein, and recover the property, he must tender the purchase money. Howard v. Korth, 5 Tex., 290.

But it is held that a fraudulent purchaser at such a sale is not entitled to the benefits of this rule. Freeman on Void'Judicial Sales, sec. 52, and cases cited. We need not, however, speculate upon the similarity of the defendant’s position to that of a fraudulent purchaser. The proffer to do equity made by appellant was, we think, sufficient, under the circumstances; and if bis allegations as to the amount of indebtedness were somewhat indefinite, the defendant probably had sufficient knowledge upon the subject not to stand in need of the information.

We think the plaintiff was entitled to have a trial upon the facts.

Our opinion is, therefore, that the judgment should be reversed and the cause remanded.

Eeversed and remanded.

[Opinion adopted May 4, 1883.]  