O'Donohue v. Smith

Houghton, J. (dissenting):

I think these judgments should be affirmed, without modification. Evidence had been introduced on behalf of defendants, and the *223decision of the ¿ourt in favor of defendants was upon the merits as to the particular form of action brought by plaintiffs; and the court had the right to conform his findings and the judgment to his decision.

I concur with Hr. Justice Scott in his conclusion as to the necessity for disaffirmance before action, and also respecting the necessary allegations and proof in an action to remove cloud on title. I cannot concur, however, with him respecting the time when the Statute of Limitations began to run against .the plaintiffs. The action is in equity to cancel an infant’s deed simply because of infancy, and manifestly the' ten-year Statute of Limitation applies. There is a very broad distinction between such an action and one brought at law for ejectment where a different rule of limitation might apply. ’

It must be conceded that the authorities which discuss the time when such an equitable cause of action arises in behalf of the infant and when the Statute of Limitations begins to run are unsatisfactory.

The best exposition of the doctrine as to when the Statute of Limitations begins to run against an infant where a third party lias interfered with his property rights during infancy and redress is sought in an equitable action, to which my attention has been called or which I have been able to find, is in the opinion of Judge Hiscook in Cahill v. Seitz (93 App. Div. 105), written while he was a member of the- Appellate Division .of the fourth department. In that case a guardian in socage had purchased in his own name at foreclosure sale real property of which the infant owned the equity of redemption, and it was held in an equitable action to impress a trust thereon that the infant’s cause of action accrued at the time of the purchase, and that the Statute of Limitations must be. computed from that time.

It is true that in the opinion in that case it was suggested that possibly there was a difference where a third person in violation of duty had appropriated the property of an infant, and where the infant had voluntarily conveyed real property during infancy. I can see no logical distinction in a pure action in equity contradis tinguislied from one at law in the one.case from the other. He is more likely to be wronged by a third person standing in a fiduciary *224relation to him without his comprehending the wrong done than he is to sign and execute a deed without comprehending what he is doing! If he must ascertain and bring action for the wrong inflicted by a third person within a prescribed period, he ought to take cognizance of his own act in deeding away his property and be compelled to disaffirm and bring action for its restoration within the same period of time.

While courts should be careful of the rights of infants,' much less harm would be done by applying the rule in Cahill v. Seitz (supra) to voluntary conveyances made during infancy than appears to have been done by the rule laid down in Eagan v. Scully (29 App. Div. 617; affd., 173 N. Y. 581). There for an expressed money consideration an infant conveyed property to her father which he had given to her- previously. At the time of the conveyance she was so nearly of age that the question of her having attained, majority when she signed the deed was sharply litigated. ¡Nevertheless, although she lived seven years after giving the deed and concededly six years after she became of age, not dying until 1887 her infant heirs in 1894 were permitted to disaffirm her conveyance and recover back the property.

That action was in partition and not one to set aside the deed or impress a trust, but I hesitate to believe the Court of Appeals in affirming that case intended to adopt in its entirety the doctrine enunciated in the prevailing opinion of the court below.

It seems to me ■ the sapie rule of limitation should be applied to an infant who brings big action in equity for restoration where he voluntarily conveys his real property as is applied to him when a third party wrongfully takes his real property from him. Without entering upon an extended analysis or discussion of the authorities, I content" myself with saying that I am persuaded the rule ought to be that the Statute of Limitations began to run against these plaintiffs at the time they gave their deed, and more than ten years having elapsed and they not being entitled to the one-year extension after removal of disability they, therefore, are barred from maintaining the present action in the form in which they have brought it.. If such be the case, the decision of the learned trial court was necessarily on the merits and the judgment was proper.

Whether they can bring an action at law to recover the property *225without being barred by the Statute of Limitations or by the judgment in this action is another matter with which we now have nothing to do.

Laughlin, J., concurred in result.

Judgment modified as directed in opinion and as modified affirmed, with costs. Settle Order on notice.