
    Lanning v. Brown.
    
      Deed executed by infant — Action for cancellation — Not barred in twenty-one years after execution, when — Disaffirmance of deed —Partition.
    
    On the 12th day of March, 1888, B., an infant eighteen years of age, executed deeds conveying his. interests in certain real estate situate in this state, to grantees therein named, who did not file such deeds for record until the year 1909. B. arrived at majority on the 24th day of October, 1890, and thereafter did no act to ratify or confirm said conveyances, but on the contrary brought suit on the 17th day of April, 1909, to obtain partition of said real estate, in which action he also prayed that the deeds he had executed be cancelled.
    Held: That B.’s action so commenced operated to disaffirm the deeds and it was not barred by the twenty-one year statute of limitations. He is entitled to partition and the other relief prayed for.
    (No. 12673
    Decided June 30, 1911.)
    Error to the Circuit Court of Morrow county.
    On the 17th day of April, 1909, the defendant in error filed his petition against Satira M.. Levering et al., asking partition of certain real estate, part of which is situated in Knox county and part in Morrow county.
    After the defendants were brought in, the petition was amended by making the plaintiff in error party defendant, and also alleging that the plaintiff, Victor E. Brown, while a minor eighteen years of age, had joined some of the defendants in executing deeds, by the terms of which he had conveyed his interest in said lands to the grantors of some of said defendants, which deeds, made during his minority, he prayed to have cancelled by decree of the court and that partition be ordered as originally prayed for.
    The defendants set up, in two forms, the statute of limitations as a bar to the action.
    The reply denied the facts alleged to constitute the statutory bar.
    The case having reached the circuit court on appeal, that court found the following facts, in which the entire case is developed.
    “That Joseph Levering died intestate in the year 1871, seized of the lands in the amended petition described, leaving Shannon Levering, Charles Levering, Edward Levering, Calvin Levering and Lurana Levering Brown his only children and only heirs at law.
    “In the year 1872, the said Edward Levering and Calvin Levering, being in possession of said real estate as tenants in common, purchased the shares of said Shannon Levering and Charles Levering, and continued in possession as co-tenants with said Lurana Levering Brown until her death; that she died in the year 1885, leaving Edmond W. Brown, her husband, and two chil-dren, Victor E. Brown, the plaintiff, and Lillie B. Hill, her- only heirs at law; that on the 12th day of March, 1888, the said Edmond W. Brown, Victor E. Brown, and Lillie B. Hill, by two deeds executed in due -form, conveyed their interest in said lands to Edward and Calvin Levering; that said Victor E. Brown at the date of the execution of said deeds was. a minor eighteen years of age and received no consideration for said conveyance; that he attained his majority on the 24th day of October, 1890;- that said .deeds were not filed for record until the year 1909, and when they were so filed for record he had no knowledge of their existence or recollection of having signed the same; that he filed his petition in this action on the 17th day of April, 1909, within twenty-one years after he arrived at the age of majority, but more than twenty-one years after said deeds had been executed by him; that said Edmond W. Brown died prior to the commencement of this suit; that said Edward and Calvin Levering continued in possession and exercised control over said lands by living upon, farming and keeping the same in repair, and paying the taxes thereon .until the death of said Edward Levering; that he died intestate in the year 1893, without issue, leaving Satira M. Levering, his widow, and said Shannon Levering, Charles Levering, Calvin Levering, Victor E. Brown and Lillie B. Hill his only heirs at law.
    “That in the year 1896 said Calvin Levering intermarried with said Satira M. Levering, widow of said Edward .M. Levering, deceased, and died in the year 1904 intestate and without issue, leaving said Satira M. Levering his widow, and the said Lillie B. Hill, Victor E. Brown, Milton Levering and Homer Levering his only heirs at law.
    “The said plaintiff, Victor E. Brown, lived within one and a half miles of said lands from the time of his mother’s death until the commencement of this suit, and frequently visited at the Levering home and was on friendly terms with all of them and frequently assisted said Satira M. Levering upon her request in the management of said lands by his counsel and advice. That said Victor E. Brown made no demand or effort to assert his rights as to the ownership of said lands, or of any interest in them until the commencement of this suit, April 17, 1909.”
    As conclusion of law, the court found “that the possession of said Edward and Calvin Levering during their lifetime was not adverse to plaintiff, and that said J. W. Lanning has not held the same by adverse possession a sufficient length of time to perfect his title against the said plaintiff; that this action is not barred by the statute of limitations; that said Victor E. Brown never ratified his said deeds; that he disaffirmed the same by the bringing of this action and is entitled to have the same set aside and to have partition as prayed for.” The court ordered partition to be made, setting off to Victor E. Brown one-tenth part and in addition thereto found that he has an estate of seven-eighths subject to life estate of Sátira M. Levering.
    The defendants excepted and prosecute error in this court to reverse the judgment entered on said findings of fact.
    
      Mr. L. K. Pozvell, for plaintiff in error.
    We claim that the title to said lands passed by the minor's deed of March 12, 1888; that such deed is not void, but voidable only. Lessee of Drake v. Ramsey, 5 Ohio, 252; Cresinger v. Lessee of Welch, 15 Ohio, 156; Hamilton v. Traber, 44 Am. St., 263; Lemmon v. Beeman, 45 Ohio St., 505.
    
      
      Messrs. Harlan & Wood and Mr. M. W. Spear, for defendant in error.
    The defendant Lanning interposed as a defense to the amended petition, that of adverse possession for more than twenty-one years, by him and those under whom he held.
    It is conceded that the relationship of tenants in common existed; and as long as it existed there could be no adverse possession; unless the occupant by overt acts of an unequivocal character, clearly indicated his intention to possess the premises to the exclusion of the rightful owner. Young v. Heffner, 36 Ohio St., 233; Clark v. Lindsey, 47 Ohio St., 437; Gill v. Fletcher, 74 Ohio St., 295.
    There was no new possession, but a continuation of the old, and the situation remained as it was prior to the purported deeds. Shahan v. Swan, 38 Ohio St., 25.
    We contend that under such circumstances a tenant in common who procures a deed from a minor co-tenant, and holds it in secret from record for over twenty-one years, is estopped by his own act of laches or fraud, whichever it might have been, from afterwards claiming that during the time he held the premises by adverse position, and thereby acquire title to the minor’s interest in the same. Long v. Mulford, 17 Ohio St., 484; Piatt v. Longworth, 27 Ohio St., 159; Bunnell v. Stoddart, 2 Am. Law Rec., 219.
    It is conceded that a minor’s deed is not void, but voidable only, and that the title to the premises conveyed passes by the deed, and remains in the grantee until some act of disaffirmance is done by thfe minor after arriving at majority. Logan v. Gardner, 20 Am. St., 939; Lemmon v. Beeman, 45 Ohio St., 505.
    A' minor’s deed is disaffirmed and rendered void by his own act, in bringing suit in ejectment or partition, or by any act showing his intention not to be bound by the deed, and disaffirmance before action is not necessary, as the action itself is a disaffirmance. Lessee of Drake v. Ramsey, 5 Ohio St., 252; Hughes v. Watson, 10 Ohio, 127; 22 Cyc., 547, 551, 608; Bank v. Wheelock, 52 Ohio St., 551.
    ‘If there is a claim of ratification, the burden of proof is upon the one claiming under the voidable deed. 22 Cyc., 608.
    It cannot be claimed that Lanning is an innocent purchaser, as an innocent purchaser is not recognized under the law of infancy, as it would only open the door to defraud infants. Englebert v. Pritchett, 26 L. R. A., 186; Craig v. Van Bebber, 18 Am. St., 569.
    An infant who makes a conveyance, has until such time as will complete the bar of the statute of limitation after the removal of his disability, to disaffirm his deed, and his silent acquiescence will not be regarded as a confirmation of the sale, unless prolonged for the period required to make the statute of limitations a bar, or unless under circumstances requiring- him to decide and act as to confirmation or disaffirmance. Shipp v. McKee, 92 Am. St., 616; Craig v. Van Bebber, 18 Am. St., 677; Sims v. Everhardt, 102 U. S., 310; Lessee of Drake v. Ramsey, 5 Ohio, 252; Piatt v. 
      Longworth, 27 Ohio St., 198; Cresinger v. Lessee of Welch, 15 Ohio, 156.
   Price, J.

It is important to keep in mind at least three dates — dates of events which are vitally involved in the consideration of this case. The deeds which were executed by Victor E. Brown for land he desires partitioned, were executed on the 12th day of March, 1888, when he was eighteen years of age. He arrived at his majority on the 24th day of October, 1890. The action now under review was commenced by him on the 17th day of April, 1909.

If he can now be relieved from the effect of the deeds made during his infancy, there is no doubt that he is entitled to partition as prayed for, because such deeds are the only legal obstacle to his obtaining that relief.

The conveyances having been made during the infancy of the grantor, three or more questions arise: (1) Did the minor grantor, after arriving at majority so confirm or ratify the conveyances that he is bound by them? (2) Has he disaffirmed the conveyances within proper time and in a legal manner? (3) Did he commence this action within the time allowed by law for that purpose? Or was' his right of action barred by ■ the statute of limitations on the 17th day of April, 1909?

Looking at the findings of fact, we see nothing to show a ratification or confirmation of the conveyances, after Brown arrived at majority. All that relates to that subject is contained in the following finding: “That said plaintiff, Victor E. Brown, lived within one and a half miles of said lands from the time of his mother’s death until the commencement of this suit, and 'frequently visited at the Levering home and was on friendly terms with all of them, and frequently assisted said Satira M. Levering upon her request in the management of said lands by his counsel and advice. That said Victor E. Brown made no demand or effort to assert his rights as to the ownership of said lands, or of any interest in them until the commencement of this suit, April 17th, 1909.”

We take this finding to mean that Brown was a near neighbor to the lands occupied by some of the grantees with whom he was on friendly terms, and whom he frequently visited, and that he gave advice to the aged widow about the management of said lands. One other finding should be remembered, which is, that the grantees of Victor E. Brown kept the deeds from record until the year 1909, and “that when they were so filed for record, Brown had no knowledge of their existence, or recollection of having signed them.” It seems to be the law that to confirm or ratify, one must have knowledge of the matter or transaction to be confirmed or ratified, and that silence or even acquiescence does not amount to such ratification.

In Tucker v. Moreland, 10 Peters, 75-6, it is said: “Without undertaking to apply this doctrine to its fullest extent, and admitting that acts in pais may amount to a confirmation of a deed, still we are of opinion that these acts should be of such a solemn and unequivocal nature as to establish a clear intention to confirm the deed, after a full knowledge that it was voidable. A fortiori, mere acquiescence, unconnected with any acts demonstrative of an attempt to confirm it, would be insufficient for the purpose.”

In Jackson v. Carpenter, 11 Johns. R., 542-3, it is held by the supreme court of New York, that acquiescence by the grantor in a conveyance made during his infancy, for eleven years after he came of age, did not amount to a confirmation of the conveyance; that some positive act was necessary evincing his assent to the conveyance. The same doctrine is found in Curtin v. Patton, 11 Serg. & Rawle, 311; Urban v. Grimes, 2 Grant R., 96. In the latter case, it is remarked: “However, should an infant grantor neglect to make an actual disaffirmance of his deed of lands, or sale of personal chattels after coming of full age until the time limited by the statute of limitations for bringing an action has elapsed, the delay would operate as an affirmance of the deed or sale.”

In the history of this case, Brown joined others in conveying the real estate. He was young and lacked business experience, and tlje grantees, for some reason, kept the deeds from record over twenty-one years and until 1909, which was the year suit was commenced. Until then, it is found, that Brown had no knowledge or recollection of having signed the deeds. If the signing had ever impressed his mind, the impression faded into forgetfulness, until these instruments appeared of record. Then he sued.

And this brings us to the second question: Has Brown disaffirmed the conveyances within proper time- and in proper manner?

In Drake v. Ramsey et al., 5 Ohio R., 252, it is held, “that a conveyance by an infant feme covert may be disaffirmed whilst action of ejection is not barred by the statute of limitations.” The opinion of Lane, J., is instructive, both on when the right of disaffirmance may be exercised, and what liiay be considered a sufficient act of disaffirmance. On page 254, the learned writer of the opinion says: “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 of this suit is an act fully possessing this character.” Continuing, it is said: “But it is strenuously urged that the power of disaffirmance must be executed in a reasonable time; in some short period after the infant becomes of age. The cases cited do not appear to us to establish this proposition, nor do we believe it supported by any sound reasons * * * .”

Again, on the same page, after commenting on authorities cited, it is said: “In our opinion, lapse of time may frequently furnish evidence of acquiescence, and thus confirm the title, but of itself, does not take away the ri"ht to avoid,' until the statute of limitations takes effect. In this position we are countenanced bv decisions of the most respectable courts.” And certain cases are cited. The remainder of the opinion tends to further elucidate the position taken. The foregoing decision was approved and followed in Hughes v. Watson, 10 Ohio R., 127-134. See, also, Cres inger v. Lessee of Welch, 15 Ohio R., 156, where the foregoing cases were thoroughly discussed and approved. There is no later case decided by this court in which these holdings have been questioned or overruled.

Hence it is, that the bringing of the action now under review of itself is a disaffirmance oh the deeds in unmistakable language, and it has been done within the statute of limitations as- will fully appear later in this opinion.

There was nothing- for Brown to restore to the grantees before disaffirming, for the circuit court has found that he received no consideration for the conveyances, and therefore he could restore nothing, even if such duty could be imposed upon him in case he had' received valuable consideration, which we need not decide.

Closely related to the last is the third question: Did Brown commence his action within the time allowed by law for that purpose? Or, in other form, was his right of action barred by the statute of limitations April 17, 1909, the day it was commenced ?

Counsel for plaintiff in error labor to convince us that, “the statute begins to run with the accruing of the cause of action, and not when the risfht to maintain it-becomes personal to the infant * * * and we infer that it is suggested, that the cause of action accrued at the time the minor made the deeds, and not when he arrived at maioritv. We are unable to realize how this view will aid olaintiff in error, for if the cause of action accrued as claimed, it must be conceded that Brown was not required to sue during his minority, and if not during his minority, what is the limitation ?

But we think the premise assumed by counsel is wrong. The right to ratify or disaffirm is a personal privilege conferred by law upon the minor. After coming of age he may ratify and his deed be absolutely binding. On the other hand, he may disaffirm.

It is said in Andrews’ American Law, 698: “Conveyances of real property by an infant cannot be affirmed or avoided until he attains his majority, although the infant may obtain the use of the land in such cases.” This seems a reasonable assertion, because, if the infant is under disability when he executes a voidable deed for real estate, he is likewise disabled to ratify or disaffirm during minority. In Wood on Limitations, Section 238, the author says: “Persons who have not attained the age of majority are infants, and in those states where infancy is within the saving clause of the statute, the statute does not begin to run against him or her, even though he or she has a guardian who might sue the claim in question; nor even though other persons are jointly interested in the claim who are of full age, — until he or she attains the age of majority. The fact that a guardian or infant himself brings a suit before the disability is removed, does not operate as a waiver of the saving clause in favor of the disability.”

This is alc'in to the holding in Roof v. Stafford, 7 Cowen, 179, where the reasons for the rule are clearly stated. In harmony with the latter case is Bool v. Mix, 17 Wend., 119.

See also Carrell v. Potter, 23 Mich., 377; Prout v. Wiley, 28 Mich., 164; Donovan v. Ward, 100 Mich., 601. These Michigan cases fully cover our questions and they cite many authorities in support of what they decide.

See also Sims v. Everhardt, 102 U. S., 312.

Has our statute of limitations made any exception to the current law as we have found it?

Section 4977, Revised Statutes, provides: “An action for the recovery of the title or possession of real property, can only be brought within twenty-one years after the cause of action accrues * * * .” The next section provides that: “If a person entitled to bring the action mentioned in section four thousand nine hundred and seventy-seven (4977) is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such person may, after the expiration of twenty-one years from the time the cause of action accrues, bring such action within ten years after such disability is removed.”

A restatement of some dates enables us to apply these two provisions. The deeds were executed by Brown on the 12th day of March, 1888, while he was an infant eighteen years of age. He arrived at majority on othe 24th day of October, 1890, and he filed his original ,petition in this case on the 17th day of April, 1909. Twenty-one years, one month and five days elapsed from the date of the deeds until the original petition was filed herein, and eighteen years, five months and twenty-three days elapsed from the time Brown reached his majority before the original petition was filed. He disaffirmed the deeds by filing said petition April 17, 1909, which was done within twenty-one years from the date of his majority.

From what we have said as to the law which controls this case, there' is no reasonable construction of our statute of limitations which bars a recovery.

It follows that vwe should affirm the judgment of the circuit court and it is affirmed.

Judgment affirmed.

■ Spear, C. Davis, Shauck and Johnson, JJ., concur. Donahue, J., not participating.  