It is urged that the infant, Henrietta, under the facts of this case, conveyed her interest in the property, when she signed the name of her mother to the deed, to the plaintiff. The deed was executed by her father and mother, and conveyed, and assumed to convey, only their interest in the premises.
It is insisted that this was a fraud upon the plaintiff, practiced by Henrietta, and that in equity, her rights are made subject to the plaintiff. In other words, that she is estopped, by reason of her fraud, from setting up her title as against the plaintiff's claim.
If one obtain money or aid in obtaining it, by falsely representing that another has title to land, when he knows to the contrary, when in fact he, himself, has the title, he will be estopped from setting up his title as against the lender.
The same sound rule of equity is applied to a prior encumbrancer, who witnesses a second encumbrance, knowing its contents, and intentionally suffers the second mortgagee to act in ignorance of the prior mortgage; he is thereby auxiliary to an act of fraud. (Brinckerhoff v. Lansing, 4 J.C.R., 70; Lee v. Porter, 5 id., 272; Fonbl. Eq., 163.)
Fonblanque says: "When a man has a title, and knows of it, stands by and either encourages or does not forbid the purchase, he shall be bound, and all claiming under him; neither shall infancy or coverture be any excuse in such case."
A case is reported in 2 Eq. Ca. Ab., 488, where an infant, over seventeen years of age, had received the full consideration for a lease assigned by his guardian, and afterward sought to avoid it, and demised the lands to another, yet equity compelled him to execute the lease or pay back the money, KING, Chancellor, holding, that infants had no privilege to cheat.
Another case of fraud was by an infant, then about twenty years of age, who was employed by his father to raise money upon land, which the father claimed to own in fee, free from encumbrance, and made affidavit to that effect. The money was obtained, and the infant was active in procuring it and *Page 409 witnessed the mortgage. After his father's death, the infant set up, as the fact was, that he had a remainder in the land after his father's death, which was all the time known to him, and insisted that the mortgage was not valid against him. The lord chancellor overruled the defence, holding that if an infant be old and cunning enough to contrive and carry on a fraud, in equity, he ought to make satisfaction for it. (2 Eq. Ca., Ab., 515.) See, also, Savage v. Foster (9 Mod., 35), where the same doctrine is recognized as to a covert, and sustained by the conceded rule applicable to infants. This was the case of a purchase of land by a third person, to which she had a title, and which she did not make known, but concealed.
In Becket v. Cordley (1 Br. C.R., 353), Lord Chancellor THURLOW recognizes the rule as applicable to infants, where the infant was a party to the fraud; but he very properly repudiates the idea that merely witnessing the second conveyance by the infant is evidence of his knowledge of its contents. (See, also, 1 Story Eq. Jur., §§ 385, 385a and 386; Bright v. Boyd, 1 Story's Rep., 478, 493.)
In most of these cases in reference to infants, the rule is laid down that the infants should be of sufficient age to appreciate their rights and duties. On this subject Chancellor KENT makes some sound observations. (2 Kent, 240, 241, and cases cited.)
The claim of the counsel for the plaintiff is based on the alleged fraud of the defendant. The difficulty is, that no fraud in the infant is found by the trial justice; but her innocence and freedom from fraud are found. We have no power to question this finding, if it were open to question as having no evidence to sustain it, as the testimony is not contained in the record. I should be entirely indisposed to listen to such an excuse from an adult, as that he had forgotten his title; but the facts of this case make it quite rational that she then had no recollection or even knowledge of this deed.
It is also insisted that the plaintiff ought to be allowed the amount paid by the father of the infant upon the mortgage, *Page 410 after his grant of land to the infant. An answer to this is that no such fact is found. He may have paid money thereon, but as it is not found that he did, or who paid it, or when, it is unimportant to discuss the law of such a case.
It is also urged that there was no acceptance of the deed by the infant; but this is contrary to the finding that the deed was delivered. A delivery cannot take place without an acceptance. (Jackson v. Phipps, 12 J.R., 418.) Besides an acceptance will be presumed from the beneficial nature of the grant. (Jackson v. Bodle, 20 J.R., 184.)
A delivery is found, and no presumption can be entertained to reverse a judgment. No fraud is found against the infant; none can be presumed from the facts found; hence there is no ground for depriving her of her legal rights.
Judgment affirmed, without costs in this court.
GROVER, FOLGER, RAPALLO and ANDREWS, JJ., concur; Chief Judge and ALLEN, J., dissent.
Judgment affirmed.