
    Daniel Alexander Starr v. David M. Wright.
    A father made a voluntary conveyance of land to a son under twenty-one-years of age. The land was encumbered by a mortgage, and was afterward further charged by a decree against the father and the son with a claim due from the father. The son during his infancy reconveyed the-land to his father to sell for the purpose of paying the debts so charged on the land. The father then sold it to a purchaser who paid full value therefor, and out of the purchase-money paid the liens on the land. Soon thereafter the son became of age and brought suit against the purchaser to recover the land. Sold:
    
    1. It was competent for the defendant, for the purpose of showing that the son held the title in trust, to prove that the conveyance from the father to the son was voluntary, and made to defraud the creditors of the father.
    
      2. The son held the land in trust for the creditors of the father and holders of liens thereon, and he might be compelled by law to submit to a sale thereof for their benefit. Having voluntarily conveyed the land during his minority to discharge the trust, he cannot, as against a boná-fide purchaser for that purpose, be permitted to disaffirm his conveyance after he attains his majority. •
    Error to the district court of Highland county.
    On the 27th of January, 1866, the plaintiff, Daniel Alexander Starr, brought his action against the defendant, David M. Wright, in the court of common pleas of Highland county, to recover the possession of seventy-five acres of land.
    The defendant answered, denying the allegations in the petition. For a further defence, and by way of cross-petition he alleged that on the 22d of October, 1864, Alexander sStarr, Sr., being in possession of the land, and being the owner thereof, sold and conveyed the same to the defendant, for $3,775.00, which sum he paid therefor j that the defendant then took possession of the land, and has ever since remained in undisturbed possession. That there was then a decree for alimony in favor of Martha Starr for $500, against Alexander Starr, Sr., which was rendered at the February term, 1863, of the court of common pleas of Highland county, and charged as a lien on the land. That Alexander Starr, Sr., conveyed the land to Alexander Starr, Jr., by deed dated Oct. 13,1862, which was declared in said decree fraudulent and void as against Martha Starr, and that said deed was set aside as to her. That this decree was paid by the defendant, out of the purchase-money for the land. That he also paid, as part of the purchase-money, $500, due to William Scott on a mortgage of the land made to him by Alexander Starr, Sr., and recorded March 28,1862. He prays to be quieted in his title, or if that cannot be done, that he may hold the land as security for the amount he had paid in discharging the liens thereon.
    To this answer the plaintiff did not reply.
    It appears from the bill of exceptions number one, that the plaintiff offered in evidence a deed of the land, dated October 13,1862, from Alexander Starr, Sr., to Alexander Starr, Jr., which deed was recorded October 16,1862. The defendant objected to the introduction of the deed, solely on the ground that the grantee named in the deed is “ Alexander Starr, Jr.,” whereas, the name of the plaintiff in this suit is Daniel Alexander Starr: ” whereupon the plaintiff offered parol evidence, in conjunction with the deed, to prove that he was known and called by both names “ Alexander Starr, Jr.,” and “ Daniel Alexander Starr,” and that he was as well known by one name, as the other, and that the deed was made and delivered to the plaintiff as the grantee thereof. The defendant objected to this parol evidence in conjunction with the deed; but the court overruled the objection, and admitted the deed with the evidence. The defendant excepted.
    It appears, from the bill of exceptions number two, that the defendant gave in evidence a deed of the premises in controversy, from the plaintiff to Alexander Starr, Sr., dated September lo, 1864, and recorded October 24,1864; and a deed of the same premises, dated October 22, 1864, and recorded October 24, 1864, from Alexander Starr, Sr., to the defendant.
    The defendant also offered in evidence the record of the case of Martha Starr, against Alexander Starr, Sr. (in which case the present plaintiff was also a defendant), for the purpose of proving that the deed of Alexander Starr, Sr., to Alexander Starr, Jr., was made to defraud his creditors, and for such' fraud-was set aside, as to Martha Starr, at the February term of the court of common pleas of Highland county, 1863. To which evidence the plaintiff objected, as irrelevant to the issues joined, which objection was sustained by the court, and the defendant excepted.
    
      The defendant also offered in evidence the testimony of a number of witnesses, for the purpose of proving that the deed from the father to the son, dated October 13,1862, was voluntary and without valuable consideration, and made to defraud the creditors of the grantor, to which evidence the plaintiff objected as being irrelevant, which objection was sustained, and the evidence was rejected and the defendant excepted.
    The plaintiff offered in evidence the testimony of sundry witnesses to prove that at the date of his deed (September 15,1864) to Alexander Starr, Sr., he, the plaintiff, was under the age of twenty-one years.
    On cross-examination of the plaintiff, the defendant proved that at the time the plaintiff executed the deed of September 15, 1864, to Alexander Stare, Sr., he, “ the plaintiff, authorized, and it was the agreement upon which the plaintiff so made said conveyance, that the said Alexander Starr, Sr. (who is the father of plaintiff), should sell said premises in controversy in this suit, and, of the proceeds of said sale, pay off and discharge the judgment lien for alimony of Martha Starr, which was by decree of the court made a lien on said premises, . . . and with the residue of said proceeds purchase a smaller property for said plaintiff, and have it deeded to said plaintiff, and that in pursuance of such agreement and understanding, the said Alexander Stare, Sr., did sell and convey said premises to the defendant by said deed of October 22,1864.”
    The defendant requested the court to charge the jury, that on the facts above stated, the plaintiff could not disaffirm his reconveyance to his father; that, if the conveyance from the father to the son was made to defraud creditors, it was void as to subsequent purchasers in good faith, for value, even with notice, on the part of the purchaser, of such fraudulent conveyance; and that, if the conveyance fx’om the father to the son was volxxntary, and made to defraud cx*editors, the recox’ding such deed is not sufficient notice to defeat the title of a subsequexxt bona-fide purchaser for value.
    The coxxrt refused to charge as requested; but instructed the jury, that though the deed from the father to the son was voluntary, and made to defraud creditors, it vested the title in the plaintiff, and was voidable only by the creditors of the father, and subsequent bond-fide purchasers without notice, actual or constructive, of such deed; and that, if the plaintiff was a minor when he reconveyed to his father, qn attaining his majority he might avoid or disaffirm his deed, as against the defendant, if the deed from the father to the son was recorded when the conveyance was made to the defendant. Defendant excepted.
    A verdict and judgment were rendered against the defendant, who then filed his petition in error in the district court, and assigned for error the admission in evidence of the deed from the father to the son; the rejection of the evidence offered by the defendant; and the refusal of the court to charge as requested by him, and for error in the charge given to the jury.
    The district court reversed the judgment of the common pleas; and to reverse the judgment of the district court, the plaintiff prosecutes his petition in error in this court.
    
      Sloane & Steel for plaintiff in error:
    1. The name of the grantee in the deed under which the plaintiff makes title, is “ Alexander Starr, Jr.” The name of the plaintiff, as written in the petition, is “ Daniel Alexander Starr.” Parol evidence was properly admitted to show that the plaintiff was as well known by the one name as the other, and that it was the same person who was thus variously named. Johnson v. Ellison, 4 Monroe, 527; State v. Weir, 38 N. II. 314; Salmon v. Shackleford, 17 Geo. 615; Crawford v. Spencer, 8 Cush. 418; Suttles & Sublets v. Whitlock, 4 Monroe, 451; Green v. Barnwell, 11 Geo. 282; Walker’s American Law, 589; Bean v. Slaughter, 24 Geo. 338; Milk v. Cristy, 1 Hill, 102, 105; Waterberry v. Mather & Maurin, 16 Wend. 611, 613; Jackson ex dem. Housman v. Hart, 12 Johns. 77; Jackson ex dem., etc. v. Stanley, 10 Johns. 139; Fletcher and another v. Mansur, 5 Ind. (5 Porter), 267; Simons v. Marshall, 3 Iowa, 502; Henderson v. Hackney, 
      23 Geo. 383; Lamar v. Minter, 13 Ala. 31; Peak v. W. R. R. Co., 18 Ill. 88; Root and another v. Fellows et al., 6 Cush. 29; Beauvias v. Wall, 14 La. 199; Hopkins v. Upshur, 20 Texas, 89; Alexander v. Moore, 19 Misso. 143; Shirley et al. v. Fearne, 33 Miss. (4 George), 653; 2 Strange, 1218; Smith v. Boker, 1 Mass. 76; Scanlan and Wife v. Wright, 13 Pick. 523; Brown v. Gilman and another, 13 Mass. 158; Stevelia v. Reed, 2 Wash. C. C. 274; Lindsay v. Hoke, 21 Ala. 524.
    2. The transcript of the record in the case of Martha Starr v. Alexander Starr, Sr., and Alexander Starr, Jr., was properly ruled out, because it was an incompetent means for proving the facts it was offered to establish, since- the parties in the action in which it was offered were not the same as the parties in the action in which the record was made, nor their privies. The record was not mutually binding on the parties. 1 Greenleaf’s Ev. 655, sec. 524; 1 Starkie on Ev. 195; Ward and another v. Wilkinson and another, 6 Eng. Com. L. Rep. 466.
    3. The transcript, as well as the parol evidence offered for the same purpose, was properly ruled out: because the facts-which both were offered to prove were immaterial, and, therefore, irrelevant, namely — that the deed from the elder Starr, to his son, the plaintiff, was voluntary, and was made to defraud then existing creditors of the former; for such a deed is presumed, in law, to be a gift or advancement, if nothing is shown to the contrary; and, though fraudulent as to such creditors, is valid as between the grantor and grantee, and a subsequent purchaser who has notice, either constructive or actual, of its existence; and the deed in question was recorded three days after it was executed and delivered, and nearly two years before the defendant, Wright, purchased. Thompson v. Dougherty, 12 Serg. & Rawle, 448; Lessee of Tucker & Thompson v. Moreland, 10 Peters, 58, 76; Burgett's Lessee v. Burgett, 1 Ohio, 469, 479; Thompson and others v. Barton, 18 Ohio, 418, 422; Douglas, Lessee, v. Dunlap et al., 10 Ohio, 162, 163; Vansant and others v. Davis, 6 Ohio St. 53; Lessee of Barton and others v. Mor
      
      ris' heirs, 15 Ohio, 408, 428; Myers and others v. Saunders hews, 6 Dana, 507.
    4. Several of the instructions asked by the defendant were abstract, and were, .therefore, properly refused. Cressinger v. Welch, 15 Ohio, 156; Stewart v. The State, 1 Ohio St. 66; Shorter v. The People, 2 Comst. 193; Stephens & Everett v. The State, 14 Ohio, 386, 390; French v. Malard, 2 Ohio St. 44, 45; Wright v. Clarke & Robinson, 34 Miss. 46
    5. The “agreement and understanding,” ontside of the deed, upon which it is assumed in the first instruction asked by the defendant, the deed from the plaintiff to the elder Starr was made, could not take away the plaintiff’s right to disaffirm, and, therefore, the instruction was properly refused. Cook et al. v. Toombs, 36 Miss. 685, 688.
    6. Knowledge on the part of a subsequent purchaser, that a former deed in the chain of his title was made to defraud the creditors of the grantor in such deed, does not, in any way, affect the validity of the title of such purchaser, except as against such creditors. Lessee of Douglas v. Dunlap and others, 10 Ohio, 162.
    
      N. Barrere, Mills Gardner, and Thompson dc Dill for defendant in error:
    1. The grantee in the deed is named “ Alexander Starr, Jr.the name of the plaintiff is “ Daniel Alexander Starr,” and is not, therefore, the person named in the deed.
    It is true that before the court passed upon the question of the admissibility of the deed in evidence, the plaintiff offered parol evidence to show that the plaintiff was as well known by the one name as the other; and that the plaintiff, in fact, is the same person to whom the deed was executed and delivered; yet, notwithstanding the numerous authorities, quoted by the counsel for the plaintiff in error, on that point, we still think that the objection to the deed was well taken. “ The law knows but one Christian name, which is the first; the middle letter, or name, is, in fact, no part of the name.” Franklin v. Tallmadge, 5 Johns. 84; Rosenvelt v. Gardner, 2 Cowen, 464; Jennings v. Wood, 20 Ohio, 261
    
      2. The court of common pleas erred in refusing to admit the evidence set forth in bill of exceptions No. 2, because the proof offered did tend to show that the deed at the date of October 13th, 1862, from Alexander Starr, Sr., to Alexander Starr, Jr., was fraudulent as to the creditors of the said Alexander Starr, Sr., being made with intent to defraud them, and was, therefore, void, not only as against such creditors, but any subsequent purchasers of the same real estate for a valuable and adequate consideration; and this, too, although the deed from the elder to the younger Starr was duly recorded on the 16th day of October, a.d. 1862.
    While said deed of October 13th, 1862, having been recorded, may be considered as constructive notice of its existence, the defendant had a right to show, in addition to the legal presumption arising from the fact of said deed having been executed as a voluntary conveyance, and without consideration, that the same was actually intended to defraud the creditors of the elder Starr; and that the plaintiff, being then about the age of eighteen years, might have known of said fraudulent intent.
    The record offered in evidence does show that the plaintiff was a party to that suit, and made no answer thereto, and thereby admitted the fact of the fraudulent intent of his father in making said conveyance. 2 Phil. Ev. (4 Am. Ed.) 18 ; 1 Starkie, 197.
    We do not contend that the deed of October 13th, 1862, as between said Alexander Starr, Sr., and the plaintiff did not pass the title, but as creditors of the elder Starr, and subsequent bond-jide purchasers for a valuable consideration, that it did not. Burgett v. Burgett, 1 Ohio, 469-479; Tremper v. Barton, 18 Ohio, 418.
    Upon the subject of fraudulent conveyances, see Trimble v. Turner, 13 S. & M. 348; Wadsworth v. Haven, 3 Wend. 411; Damon v. Bryant, 2 Pick. 411; Jackson v. Myers, 18 Johns. 425; Enders v. Williams, 1 Met. (Ky.) 346; Edwards v. Ballard, 14 B. Monroe, 289; Read v. Swingston, 3 Johns Ch. 484-486.
    
      3. The court should have instructed the jury as requested by the defendant.
    If the deed of the 13th of October, 1862, was executed by the elder Starr to defraud his creditors, and the plaintiff knew of such intention and purpose on the part of his father, then the execution of the deed of September 15th, 1864, was but doing an act which placed the parties in the same situation that they were in at the time the deed of October 13th, 1862, was executed; and if the last-mentioned deed was fraudulently executed with the knowledge of the plaintiff, the execution of the deed of September 15th, 1864, was but a restoration to his father of the property he had obtained by such fraudulent conveyance; and whether the deed was made in his nonage or not (he then having arrived at the age of discretion, being about 20 years of age), can make no difference.
    Bingham on Infancy and Coverture, 113 ; Ver. 224; 2 Ves. 212; 2 Burrows, 1802; 3 Burrows—; Reeve on Domestic Relations, 241.
    Whether he knew of the fraud of his father or not, in making the deed of October 13th, 1862, the law will not permit him to commit a fraud on an innocent man, in the way and in the manner he resorted to, by the execution of said deed of September 15th, 1864, to his father; for the relief of said premises from the liens thereon, and to sell and convey the same.
    
      Elliott et al. v. Horn et al., 10 Ala. 348; Howe v. Wagman, 12 Miss. 169; 2 Kent’s Com. 241; Stoolfos v. Jenkins, 12 S. & R. 399; Filts v. Hall, 9 N. H. 441.
    The plaintiff was of sufficient age to know the deed was without consideration, and intended to defraud creditors. And if a deed under such circumstances was made for a fraudulent purpose on the part of the elder Starr, with the knowledge of the plaintiff, then we claim that a trust might have resulted, and would have resulted, not only in favor of the creditors of the elder Starr, but of subsequent honá-fide purchasers.
    In relation to infants past the age of discretion we find that in law they are capable, of doing many things. They are liable and answerable for crimes committed by them. They are also liable for torts, and for frauds in contracts, where the contracts are for their benefit. In England, an infant may be an executor, and hold certain offices; he may' bind himself as an apprentice, and make a contract for service and wages; he may convey real estate, held as a naked title under an order in chancery, if he be a tenant in common; he may make a reasonable partition ; he may discharge a mortgage on due payment of the mortgage debt; and do various other acts. He is liable, in trover, for tortiously converting goods intrusted to him, or fraudulently obtaining goods with an intention not to pay for them. See 2 Kent’s Com., pp. 241, 242; 6 Crunch. 226; Vasse v. Smith, 10 Peters, 58 ; Catts v. Phalen, 2 Howard, 376.
   Day, J.

It is apparent from the record in this case, that the evidence offered by the defendant, to prove that the conveyance from the father to the son was voluntary and made to defraud creditors, was rejected, and that the charge of the court to the jury was based on the idea that the reconveyance to the father by the son, being a minor, was voidable, and that a conveyance to defraud creditors only could not be invalidated by a subsequent purchaser.

Both parties claim title under the same grantor. The title of the defendant is unquestioned unless the plaintiff may avoid his deed to the grantor of the defendant. This he claims the right to do, on the ground of his infancy when the deed was made. Here then arises the question, as to the correctness of the rulings of the court touching the right of the plaintiff to disaffirm his deed to the grantor of the defendant.

It may now be regarded as settled, that the deed of an infant, as a general rule, is not void, blit is voidable only. It is good and valid unless disaffirmed by him after he becomes of age. If it be a deed that he has not the right to disaffirm, it is a good conveyance of the title and he is bound by it.

By bringing this suit the plaintiff has disaffirmed his deed made while he was an infant; but his right to disaffirm is questioned by the defendant. He claims that the plaintiff paid no consideration for tbe land, and that the conveyance-was not made as a gift or advancement, but was made to him for the purpose of defrauding the creditors of the grantor,, and that, therefore, the plaintiff only held the title in trust without any substantial interest in the property.

In cases of voluntary conveyances to defraud creditors, the-trust in their favor, and their right to enforce it against the grantee, is undoubted; and the only reason why the secret •trust in favor of the grantor cannot be enforced by him is-the anxiety of the law to discourage frauds.

But it is said in White v. Brocaw, 14 Ohio St. 339, 341, that “ the moral obligation of the grantee to restore property so held, is not only clear, but is fully recognized in the decided cases. Swift v. Holdridge, 10 Ohio, 320. If he does-restore, the law discharges him from his liability as trustee for the creditors of his grantor, and undoubtedly any steps taken, or acts done by him, subsequent to the conveyance, toward the discharge of this moral duty, should receive the favorable consideration of a court of equity.” It is difficult to imagine any good reason why this moral obligation does-not rest with as much weight on a minor as upon an adult, nor why an infant, having no equitable interest in the property, should be permitted to disaffirm a reconveyance made in discharge of a moral duty to his grantor, and of a legal liability as trustee of his creditors.

Moreover, the conveyance, casting upon the minor a liability as trustee, was voidable at his election. The reconveyance was, in effect, a voidance of the deed to him, and a restoration of the title to his grantor, where it properly belonged. This is at least as strong a case, in principle, for holding the infant bound by his restoration of the property, as is that of Edgerton v. Wolf (6 Gray, 453), where it was-held, that “ an infant who receives property -under a contract of sale to him, and surrenders it to the seller, intending to give up all his interest in it, cannot afterward avoid such surrender, and retake the property from the possession of the seller.”

Again, it appears from the record that the infant, at the time he made the reconveyance to his father, had arrived at years of discretion — being then about twenty years of .age — and that it was made for the express purpose of conveying the title to the purchaser of the land. The defendant then purchased, to say the least, with the express or implied consent of the plaintiff, and paid a full price for the land, under circumstances clearly showing that the purchase was made with the full knowledge of all the parties, and that the defendant intended to obtain and supposed he had obtained a full title to the land, and not a mere equity. To permit the infant now to disaffirm, without restoring the purchase money, would be allowing him to use his privilege as a sword and not as a shield, which is contrary to a recognized maxim of the law. (See 2 Kent, 276. [*240]; Irwin v. Merill, Dud. [Geo.] 72; 2 Rich. Eq. Rep. 120.)

But the defendant, having out of the purchase-money discharged the claims of the creditors of the fraudulent grantor •on the land, in equity, stands in their right as against the plaintiff. It cannot be disputed but that the plaintiff, if he had- retained the land, could have been legally compelled to .submit to its sale for the benefit of the lienholders and creditors of the fraudulent grantor.

“ The authorities are express, that if an infant does a right act, which he ought to do, and which he was compellable to do, it shall bind him.” 2 Kent, 267 [*243]; Co. Lit. 172, a;3 Burr. 1801. The defendant stands in the shoes of the vol untary grantor of the plaintiff, and of the plaintiff’s oestm «que trusts. lie holds, through the voluntary conveyance of the plaintiff, a title that might be obtained by process of law against him through a judicial sale. He holds it, coupled with the right of the voluntary grantor of the plaintiff, but without his legal disability to enforce it. The plaintiff, therefore, cannot, as against the defendant, be permitted to disaffirm his reconveyance of the title.

In Elliott v. Horn (10 Ala. 348), a case much like this was held to come within the rule above mentioned. In that case a father having entered land in the name of his son, for the purpose of defrauding his creditors, afterwards sold the-land, and by his direction the son conveyed during infancy to the purchaser. On coming of age he conveyed the land to another, who brought suit. It was held, that as his conveyance during infancy was such as the law would have compelled him to make, he could not disaffirm it on attaining his-majority.”

The law permits an infant to disaffirm his contracts in conservation of his rights and interests. When no just rights or interests of the infant exist'needing protection, we ought not to be over anxious to convert the privilege which is given-him as a shield, into a weapon of injustice. Sheldon v. Newton, 3 Ohio St. 507; Zouch v. Parsons, 3 Burr. 1800.

Since it was material for the plaintiff to avoid his conveyance to the grantor of the defendant, it was competent for the defendant to give evidence tending to show a state off facts that precluded the plaintiff’s right to disaffirm his deed. As has been shown, the evidence offered by the defendant, to-prove that the conveyance to the plaintiff was voluntary, and made to defraud the creditors of the grantor, was material and pertinent, for the purpose of showing that the conveyance from the father to the son was not by way of gift or advancement, but that the plaintiff held the title in trust. It follows that the court erred in excluding that testimony from the jury; and it also follows that the charge of the-court to the jury, in relation to the unqualified right of the plaintiff to disaffirm his reconveyance of the title to his-grantor, was, under the circumstances of the case, as against the defendant, erroneous.

The district court, therefore, properly reversed the judgment of the court of common pleas.

This view of the case renders it unnecessary for us to express-an opinion upon the other perplexing questions, raised on the second bill of exceptions, which have been ably and elaborately discussed in argument, and upon which it is doubtful if we should find ourselves able to concur in opinion.

It is, however, proper to say, that the ruling of the common pleas, as shown by the first bill of exceptions, is undoubtedly sustained by the great weight of authority referred to in the argument for the plaintiff.

Judgment of the district court affirmed.

Brinkerhoee, C.J., and Scott, Welch, and White, JJ., concurred.  