
    Ridgeway, Appellant, v. Herbert et al.
    Division One,
    June 14, 1899.
    1. Issues of Law: setting aside deed : minority of maker. Whether or not the maker of a deed and of a lease was a minor at the time he executed them, and whether or not he disaffirmed them after becoming of age, are issues in an action at law triable by a jury-
    2. Issues in Equity: setting aside deed: fraud. But whether such instruments were obtained by fraud is an issue in equity, triable by the chancellor.
    3. Law Action: equitable defense: practice. Where an answer in a law suit admits the plaintiffs cause of action and sets up a purely equitable defense, it converts the whole case into a suit in equity, triable by the court. But where the answer sets up two defenses, one equitable, and the other legal, plaintiff is still entitled to his jury trial, unless the equitable defense prevails.
    4. -: -: -: review of facts. But if in such state of the pleadings, the whole case is submitted to the jury without objection on either side, and it can not be ascertained which class of issues controlled the jury’s verdict, the appellate court will weigh all the evidence and find the facts.
    5. Minor: deed: representations. The deed of a minor is voidable even though he represented himself to be of age and thereby misled the other party to his disadvantage.
    6. -: SETTING aside deed: former suit: estoppel. And where the minor brought a suit to set aside the deed on the ground that it was obtained through fraud, and in his petition alleges he was of age, he is not estopped in a subsequent suit from asking that it be set aside on account of his minority.
    
      7.-: -: restitution. And if be bas obtained tbe consideration while he was a minor and wasted it, he may avoid the deed without making restitution.
    8. _: -: disaffirmance. Where the minor made a deed and wasted the consideration, the making of a deed to another as soon as he became of age amounted to a disaffirmance of the first deed. *
    9. Setting Aside Deed: fraud. A young man of dissipated and prodigal habits leased land worth $2,000, in which he had a life estate, for $100 per year for five years, payable in advance, and in a few days sold the first lease note for $55 to plaintiff, who a little later bought the other four notes for $150, and at the same time leased the land from him for another five years for $50 for the term, and gave him $50 more for his lifetime interest. Plaintiff had known the young man all his life, and knew that he had just come into possession of the land, and that he had been given a life estate only because of his dissipated and spendthrift habits. Held, that the deed and the assignment of the lease were obtained through fraud.
    
      Appeal from Grundy Circuit Court. — Hon. PabisC. Stepp, Judge.
    Revebsed and demanded (with directions).
    
    S. C. Pbice for appellant.
    (1) Plaintiff’s objection to evidence tending to prove tbe drunkenness of George W. Moberly at tbe time of making tbe various contracts with plaintiff should bave been sustained. If Moberly was drunk, it did not make those contracts void, but only voidable, and be only could object to them on that ground. These defendants can not avoid said contracts on that ground, even if they are shown to be in privity in estate with said Moberly. Eaton’s Admr. v. Perry, 29 Mo. 96. (2) Upon tbe pleadings and undisputed evidence in this case, tbe doctrine of equitable estoppel applies. Justice v. Town of Lancaster, 20 Mo. App. 559; Union Savings Ass’n v. Kehlor, 7 Mo. App. 158; Guffey v. O’Reiley, 88 Mo. 429; Kennedy v. Bambriek, 20 Mo. App. G30; Craig v. Yan Bebber, 100 Mo. 584. (8) In order that a subsequent conveyance may operate in law as a dis-affirmance of contract of infancy, tbe subsequent conveyance must be so inconsistent with, such contract of infancy that both can not stand. ' Craig v. Yan Bebber* 100 Mo. 584. (4) An affirmance of a contract of an infant may be made after coming of age, by expressing satisfaction with the bargain. Craig v. Yan Bebber, 100 Mo. 584. (5) Appellant’s motion to strike out parts of defendants’ answer should have been sustained. A judgment in ejectment is not a bar to another action, even between the same parties, and that whether the title and defense be the same or not. Hogan v. Smith, 11 Mo. App. 314; Dunn v. Miller, 8 Mo. App. 467; s. c., 75 Mo. 260; Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493. (6) . Even if Moberly was a minor when the assignment of the Martin lease and the lease and deed to Ridgeway were made, yet, in the subsequent suit of Moberly v. Ridgeway, he pleaded his majority when those transactions-were had, and the rule of estoppel by pleading should apply, to him and those claiming under him against the above conveyances. Kennedy v. Bambriek, 20 Mo. App. 630; Bige-low v. Estop, 603 and 604; Eerguson v. Landvain, 1 Busch. 548; Railroad v. Chicago, 87 Ill. 317; Hines v. Ament, 43 Mo. 298; Hensler v. Cannefax, 49 Mo. 295; Slagel v. Mur-dock, 65 Mo. 522. (7) That part of the judgment in this-case which enjoins appellant from bringing another suit for these lands on the present title, is clearly erroneous.
    Hall & Hall for respondents.
    (1) The deed from Moberly, after becoming of age, to Williams and Linney, was a disaffirmance of the deeds and leases previously made while a minor, and he was not required to refund or offer to refund the purchase price. Peterson v. Laik, 24 Mo. 544; Harris v. Ross, 86 Mo. 89;. Craig y. Van Bebber, 100 Mo. 584. (2) In order to constitute a ratification of tbe deed and leases made by Moberly to plaintiff, and those assigned to plaintiff, after he became of age, there must have .been a direct and express confirmation of the same of a clear and unequivocal character and a substantial promise to abide by and keep- and fulfill the obligation of said leases and deed, showing an intention to affirm the same after he came of age. Craig v. Van Bebber, 100 Mo. 590; Baker v. Kennett, 54 Mo. 89; Highley v. Barron, 49 Mo. 107; Glamorgan v. Lane, 9 Mo. 472; Ferguson v. Bell’s Admr., 17 Mo. 347. (3) The transaction between plaintiff and young Moberly was clearly fraudulent. 8 Am. and Eng. Ency. of Law (1 Ed.), 644; Dickson v. Kempinsky, 96 Mo. 258; Hopkins v. Sievert, 58 Mo. 201. (a) The unusual procedure of plaintiff in procuring the assignment is evidence of fraud. Baldwin v. Whitcomb, 71 Mo. 659; Snell v. Harrison, 104 Mo. 188; Houts v. Shepherd, 79 Mo. 147; Hoge v. Hubb, 94 Mo. 503. (b) Inadequacy of price is evidence of fraud. Curd v. Lackland, 49 Mo. 454; Briant v. Jackson, 99 Mo. 598; Routt v. Milner, 57 Mo. App. 53; Robinson, Exr., v. Robards, 15 Mo. 467. (c) Intoxication is evidence of fraud. Longhead v. Commission Co., 64 Mo. App. 564; Haneklau v. Felchlin, 57 Mo. App. 603.
   YALLIANT, J.

This is an action of ejectment to recover 60 acres of land in Grundy county. The petition is in the usual form. The answer admits that defendants are in possession and sets up a state of facts showing that plaintiff is entitled to recover unless the leases and deed under which he claims are rendered invalid by reason of the further facts pleaded *in the answer, which are substantially, that on December 2, 1891, George W. Moberly, who is the common source of title, was the owner and in possession of the land, and on that day he executed a lease for a term of five years from March 1, 1892, to one Martin, at the yearly rental of $100, and on December 31, 1891, Moberly, for tbe consideration of $55 assigned bis interest as landlord in tbe lease to tbe plaintiff and J. D. Ridgeway, tbe latter afterwards assigning bis interest to tbe plaintiff; that afterwards on February 1, 1892, Moberly executed a lease to plaintiff for five years from March 1, 1897, for a total rental of $50, and three days later executed a deed to tbe plaintiff for tbe land for $50; that at tbe time be made those leases and tbe deed, Moberly was under twenty-one years of age; that after be came of age be disaffirmed those transactions and made a deed conveying tbe land to Williams and Linney under whom by mesne conveyances defendants bold title; that Moberly while yet a minor squandered tbe money plaintiff paid him for the lease and tbe deed, and did not have it to restore to plaintiff, but W. B. Linney as attorney for Moberly tendered it to plaintiff but be refused it; that after they purchased from Moberly, Williams and Linney sued this plaintiff in ejectment for tbe land and recovered it in a judgment rendered in 1895, and after that they sold it to defendant Herbert, and defendants now bold under that title.

Tbe answer then proceeds in tbe nature of a cross-bill in equity and states separately three causes calling for equitable relief. Tbe first is leveled at tbe Martin lease, and charges not only that Moberly was a minor when be made it but that in tbe matter of obtaining tbe assignment of tbe landlord’s interest in it from Moberly, tbe plaintiff who is a shrewd business man, took advantage of tbe inexperience of Moberly, plied him with whisky until be was drunk, falsely represented that tbe lease, which was worth $500, was of no value, and by that means obtained tbe assignment for $25. Then fqllows a reiteration of tbe statements in reference to tbe making of tbe deed to Williams and Linney by Moberly after be came of age, disaffirmance of tbe transactions with plaintiff, bis squandering of the money received while a minor, the tender of the amount by Williams and Linney, their recovery of tbe land by suit against plaintiff and sale of the same under which defendants hold as aboye stated. The answer concludes with the charge that the lease being of record is a cloud on defendants’ title and prays that the cloud be removed and plaintiff enjoined from suing and asserting title under it.

The remaining two paragraphs of the cross-bill are substantial repetitions of the one just summarized except that one of them is aimed at the second lease and the other at the deed made by Moberly to plaintiff, and praying for their cancellation as clouds on defendants’ title, and for injunction against them.

The reply admits the execution of the leases and deed as alleged in the answer, denies all the allegations as to fraud or improper dealing on the part of plaintiff, denies that Moberly was a minor when he executed the same, but avers that if he was a minor he was within a few months of being of age, that plaintiff dealt with him fairly and in good faith believing him to be of age, he holding himself out as such, and that he and defendants claiming under him are estopped to plead his infancy. Further, that on March 18, 1893, when he was of age, Moberly brought suit against plaintiff seeking to annul the leases and deed on the alleged ground that they were obtained by fraud and stating in his petition that he was of age when he executed them, which suit resulted in a judgment of dismissal at Moberly’s cost; that'thereby he ratified and affirmed his act and defendants are estopped to question it.

The court submitted the issues to a jury, who returned a verdict for defendants. After motions for new trial and in arrest were overruled, the cause is here on plaintiff’s appeal.

I. Under the pleadings the issues were divisible into two classes, the one constituting an action at law, the other a suit in equity. The issues affecting the validity of the plaintiff’s leases and deed on account of the alleged minority of Moberly and his disaffirmance of the same after coming of age, were issues in an action at law triable by a jury; those affecting the validity of the instruments on account of the alleged fraud were issues in an equity suit and for the chancellor to try.

Where an answer in a law suit admits the plaintiff’s cause of action and sets up purely an equitable defense it converts the whole case into a suit in equity triable by the chancellor. [Hodges v. Black, 8 Mo. App. 389; Allen v. Logan, 96 Mo. 591; McCollum v. Boughton, 132 Mo. 601.] A plaintiff is not thereby deprived of his right of trial by jury because the defendant by his answer concedes the plaintiff’s right to recover unless the equity defense prevails.

But in this case the defendant pleads two affirmative defenses, the one cognizable at law, the other in equity, although he has mingled both in the same paragraphs; but no objection to the answer on that account was made, and as the facts can be distinguished we will do so.

If the court had seen fit to try first the issues presented in those portions of the answer which are in the nature of an equitable cross-bill, and had found that the plaintiff’s leases and 'deed were obtained by fraud, the finding would have covered the whole case, and there would have been no propriety in trying the other issues. But if the court had found for the plaintiff on the cross-bill, it would have left the issues relating to Moberly’s minority and his disaffirmance or ratification live questions for trial.

It was also in the discretion of the trial court'to have singled out the issues at law and have tried them first with the aid of a jury. In that event if the verdict had been for the plaintiff, the chancellor would have proceeded to try the issues relating to the alleged fraudulent procurement of the instruments, and if his finding had been for the plaintiff, judgment would have followed the verdict of the jury; if for the defendant, there would have been a decree for him notwithstanding the verdict.

But all tbe issues in this case were submitted to tbe jury, and neither party bas a right to complain of that course because both parties tried it in that way and both asked instructions of that kind which were given.

There was a general verdict for defendant which might have been the result of a finding for defendant on one class of issues or the other or on both. If it was on the issues relating to the minority, etc., of Moberly, this court would not be required to balance the evidence to sustain the verdict, but if it was on the question of the fraudulent procurement of the instruments we would have to weigh all the evidence and find the facts.

Appellant omits from his abstract the evidence relating to the age of Moberly at the period in question, because he says he concedes that the evidence on that point was sufficient to support the finding that Moberly was under twenty-one years of age. That leaves open on that branch of the case ■only the question as to disaffirmance or ratification or estoppel. There was really no evidence entitling the plaintiff to have those questions submitted to the jury.

The evidence shows that in March, 1893, Moberly filed a suit against this plaintiff to set aside the loases and deed on the ground that they had been obtained by fraud, similar to the charge in the answer in this'ease, which suit was dismissed August 23, 1893, for failure to give security for costs. The •evidence of defendant tended to- show that it was about the time that suit was dismissed that Moberly discovered that he was a minor when he had the transactions with plaintiff, and then it was that he made the deed to Williams and Linney under which defendants claim.

The only evidence on the part of plaintiff which it is now claimed tends to show a ratification by Moberly after he came ■of age, is by plaintiff himself as follows: “Q. And this conversation you recited in answer to Judge Hill’s question, between you and George Moberly after the Moberly suit had been brought against yon; what, if anything, did Moberly say about whether he was satisfied with the transactions between yon and him? A. He told me he was satisfied for me to have the place. That I had paid him all I had agreed to, and that it was his wife and attorneys that were suing me; and as for him he considered the land sold and paid for.” Witness further said that he was not clear whether this was after-the suit had been dismissed or while it was pending; he knew it was after the suit was brought, and that in the conversation no-allusion was made to the fact that Moberly was a minor when the transactions were had, nothing said about affirming his act done as a minor, witness up to that time had never heard about. Moberly’s being a minor when he made the leases and deed. This conversation evidently related to the impeachment of the transactions on the grounds set up in the suit. It could not be taken as a ratification of his act as a minor unless it appeared that he knew that he was a minor and intended it as a ratification of an act which he might, if he saw fit, disaffirm.

In the face of that evidence there was the fact of the suit wherein Moberly was seeking to have the instruments annulled on the charge of fraud, which charge the plaintiff in this case escaped answering only because Moberly could not give security for costs. The appellant’s counsel at the trial did not seem to attach any value to the plaintiff’s evidence on. that point, since he asked no instruction submitting the question of ratification as the act of a minor to the jury; the-hypothesis of ratification given in the eighth instruction is on the theory that Moberly was drunk when he executed the-instruments. But the learned counsel there took the position that defendants were estopped from asserting that their-grantor, Moberly, was a minor because Moberly by his conduct held himself out as a man and thereby misled the p1a.int.iff and also because in the suit which he filed to set aside the instruments he alleged that he was of age at the time. An instruetion for tbe plaintiff on each of these points was asked and refused.

The deed of a minor is avoidable at his option under certain equitable restrictions when he comes of age, even though he may have represented himself as of age when he made the deed, and thereby misled the other party to his disadvantage. A minor is no more responsible under the circumstances for his representations than he is for his deed.

Of still less force on the theory of estoppel is his statement in the petition in the suit referred to, that he was of age when he executed the instruments. That was after the transactions had occurred and the plaintiff could not have been misled by it.

When one on coming of age seeks to avoid his deed made when he was a minor he must act promptly, and, if he has the consideration that was paid him for the deed, he must restore it; but if during his minority the consideration he received has been wasted, he may avoid the deed without making restitution. [Craig v. Van Bebber, 100 Mo. 584.] In that case this court per BlacK, L, said: “The privilege of repudiating a contract is accorded an infant because of the indiscretion incident to his immaturity; and if he were required to restore an equivalent, where he has wasted or squandered the property or consideration received, the privilege would be of no avail when most needed.”

The eviden'ce showed that this young man’went on a ■spree when he received the money from plaintiff and in a short .while it was all gone. There w7as also evidence on the part ■of defendant tending to show that as soon as it was discovered that Moberly was under age when he had the transactions with plaintiff, a tender of the money that had passed from plaintiff to him was made by one of Moberly’s attorneys to plaintiff and refused. That evidence, however, leaves the impression that that tender was made in the interest of Williams and Linney who were about to become the purchasers of tbe land from Moberly though it was made in Moberly’s name. But the plaintiff at the trial seems to have not considered that the evidence justified the submission to the jury of a question as to the invalidity of Moberly’s alleged disaffirmance of the transaction because of non-restitution since he asked no instruction on that point.

It appears from the evidence that the trustees under the will of the young man’s adopted father thought he had reached his majority a year earlier than the fact was, and in that mistaken fact invested the money left for him in this land, giving him a life estate and the remainder to the heirs of his body. He was under the same mistaken belief as to his age, and while so, executed the papers under which the plaintiff claims. But just about the time the suit he had filed against this plaintiff was dismissed, the mistake was discovered; then it was he made the deed to "Williams and Linney under which the defendant now claims. That deed is not set out in full in the appellant’s abstract but it is there described as a warranty deed in due form, dated August 23, 1893, and recorded two days later. Erom this we infer that it was a deed sufficiently absolute on its face to amount to a disaffirmance of the prior deeds. In such case the question of disaffirmance is not one of fact for the jury but one of the legal effect of the deed and is for the court. [Peterson v. Laik, 24 Mo. 541.]

Therefore under the record before us it is clear that Moberly was under age when he made the leases and deed under which the plaintiff claims, that he squandered the money he received from plaintiff while he was yet a minor, and disaffirmed the acts as soon after he came of age as he became informed of the facts, and under those conditions the verdict of the jury was right. There was no error in any of the instructions given and none in refusing those refused.

II. Before beginning the trial the plaintiff moved thé court to strike out those parts of the defendants’ answer that related to the suit brought by Williams and Linney against tbe plaintiff and tbe judgment therein, wbicb motion tbe court overruled.

■ As already above intimated tbe statements constituting tbe ground on wbicb tbe defendant asked relief in equity were not as clearly separated from those constituting bis plea at law as might have been. Those parts of tbe answer at wbicb tbe motion to strike out was directed constituted no defense to tbe action at law, nor did they constitute alone an equitable defense, but they stated a fact wbicb it was proper for tbe court to consider, with other circumstances, in determining whether or not tbe plaintiff should be enjoined from further suing. If as stated in tbe answer tbe title on wbicb tbe plaintiff now sues was in that suit fully litigated and adjudged to be invalid and if in this suit it should also be so adjudged tbe defendants might with reason insist that they be protected by injunction from further unnecessary litigation on that account. Therefore tbe court did not err in overruling tbe motion to strike out.

III. On tbe trial tbe defendant offered to read the records of tbe deed from Moberly to "Williams and Linney and tbe mesne conveyances of tbe title to defendant. Plaintiff objected for tbe reason that it was secondary evidence and tbe proper foundation bad not been laid for its introduction. Tbe court overruled tbe objection and tbe records ware read. Then tbe defendant offered evidence to prove that tbe instruments were lost or not within bis power. But this was objected to on tbe ground that it was then immaterial since tbe records bad already been read, and defendant withdrew tbe offer.

Under section 2428, E. S. 1889, tbe record itself was competent if tbe defendant bad satisfied tbe court that the deeds were lost or that it was not within bis power to produce them, but tbe court erred in allowing tbe record to be read before defendant bad made tbe proper showing. As however it was followed immediately with an offer of tbe preliminary evidence required we can not regard it as an injurious error. The defendants’ offer, the plaintiff’s objection and withdrawal in deference to the objection, are to be taken as indicating that defendants would have proven the fact if plaintiff had permitted.

IY. As to the alleged fraud on the part of the plaintiff in 'obtaining the leases and deed from Moberly, the evidence can be compassed within small bounds. The young man was very dissipated and a spendthrift, and his character as such was well known. The plaintiff knew him well, had known him all his life. Plaintiff was forty-one years old, a merchant and engaged also in buying and selling notes. Moberly in December, 1891, shortly "after the trustees had bought it for him, leased the farm to Martin for five years from March 1st, 1892, for $100 a year, payable in advance; within a few days after the lease was executed plaintiff bought the first $100 rent note for $55, and -within a few days afterwards bought the rest of Moberly’s interest in the lease for $150, and obtained a lease from him for a period of five years from the termination of the first lease at a total rental of $50 cash and a promise-to pay taxes; then again in a few days a deed to all Moberly’s-interest in the land, that is his life estate, for $50. The land was worth about $2,000, that is the fee.

The evidence does not show that plaintiff gave the young man intoxicating drinks, nor does it affirmatively appear that the youth was drunk when he signed the papers. But tlie-plaintiff knew the young man’s misfortune, knew how his adopted father and the trustees under the will had tried to provide for him against his own improvidence; and the plaim tiff ought not to have had those transactions with him. For a total of $250 the plaintiff essayed to become the owner of all this unfortunate youth’s estate, knowing as well beforehand how the money would be spent as did afterwards the somewhat flippant witness who stayed with him until he spent it all. The law does not justify that kind of dealing and: courts of equity will set aside deeds obtained in that way.

V. Tbe judgment that was first entered was simply responsive to tbe verdict of tbe jury to tbe effect that tbe plaintiff take nothing by bis writ and tbe defendant go bence and recover bis costs. But on overruling the motion for a new trial tbe court added to tbe judgment that tbe plaintiff be enjoined from further prosecuting a suit under tbe same title. It was not only irregular to enter judgment in that broken form but tbe defendant was not entitled to such an injunction. This is tbe first suit tbe plaintiff has brought on that title and we have no right to presume that be is going to continue to sue.

Tbe defendants however were entitled, in addition to the •ordinary judgment following tbe verdict, to a cancellation of tbe assignment by Moberly to plaintiff and J. D. Eidgeway of tbe Martin lease, and a decree that tbe second lease and the deed from Moberly to plaintiff on tbe records of Grundy county were clouds on defendants’ title and cancelling tbe same.

VI. In accordance with the foregoing views tbe judgment of tbe circuit court is reversed and the cause remanded with directions to that court to enter judgment for defendants according to tbe verdict of tbe jury on tbe plaintiff’s cause of action, and cancelling tbe assignment of tbe Martin lease to plaintiff and J. D. Eidgeway, decreeing tbe lease of date February 1st, 1892, and tbe deed of date February 4th, 1892, from Moberly to plaintiff clouds on defendants title and can-celling tbe same, and adjudging that defendants recover of plaintiff tbe costs incurred in tbe circuit court.

Bbaoe, P. J., and EobxNsoN, J., concur; Mabshall, J., concurs in result but dissents from tbe doctrine quoted from Craig v. Van Bebber, 100 Mo. 584.  