Middleton v. Hoge

JUDGE PETERS

delivered the following as his dissenting opinion:

Being unable to concur in opinion with the majority of the court in this case, I present the following reasons for dissenting therefrom :

In the summer of 1864, the appellee, William McKay Hoge, a native of Wheeling, Virginia, and then under twenty-one years of age, arrived in Louisville, Kentucky, possessed of a very large amount of means in United States Treasury notes for one of his age; and the only evidence of how he acquired them, furnished in this record, is found in an answer of his mother, Mrs. Mary Hoge, to an interrogatory propounded to her by appellants, in which she states, that at her house in Wheeling, Virginia, in September, 1864, Mr. H. C. Middleton told her that her son had discovered some fraudulent transactions in the Quartermaster’s Department in Nashville, Tennessee, and the parties to the fraudulent transactions had paid her son money to keep the “matter quiet;" and she understood from II. C. Middleton that the money so acquired was the money with which (my) her son had paid H. C. Middleton for the farm.

*493Wm. McKay Hoge and H. C. Middleton were acquaintances, which acquaintance was formed before the former arrived in Louisville, as is alleged by Hoge in an amended petition, and not denied by Middleton. Very soon thereafter they became friends, and Hoge was the guest of Middleton at his home in Henry county.

On the 20th of August, 1864, while at his house, and still a minor, as Hoge alleges, Middleton sold to him one hundred acres of his land, at the price of twenty-two thousand dollars, and a field of corn on the land, at the price of two thousand dollars. For the land, he paid fifteen thousand dollars down, in United States Treasury notes, and executed his note for seven thousand dollars, the residue of the price, due six years from date, and paid the two thousand dollars down for the corn in currency.

He further alleges, that at the date of the sale the land was not worth more than seven thousand dollars or eight thousand dollars, and the corn not more than seven hundred and fifty dollars; that he was seduced into the agreement for the purchase of the land and corn by the undue influence that Middleton had acquired over him, by his professions of friendship for him, by his (Hoge’s) lonely condition in the country, having no acquaintances but Middleton and his family, and by the false representations of Middleton that the land and corn were worth the prices which he asked and had fixed on them, for the fraudulent purpose of imposing on his non-age and want of experience, and, finally, succeeded in selling him the land and corn at prices greatly beyond their fair value; and for the causes alleged prays for a rescission of the contract on equitable principles.

*494H. C. Middleton, in the most explicit and positive terms, denies in his answer that he ever sold land or corn to said Wm. McKay Hoge, and denies that he ever received any money from, him upon any sale, or upon any contract to sell any. land or corn to him ; avers that said Hoge applied to him to sell him the land and corn, but that he declined to make any sale to him, because he was then a minor; and Hoge then informed him that his mother 'would purchase them from him, and that he then, at Iloge’s request, went with him to his mother’s, in Wheeling, Virginia, and there sold her the land at the price of twenty-two thousand dollars, of which sum fifteen thousand dollars were paid in hand, and for seven thousand dollars, the residue of the purchase price, Mrs. Hoge executed to him her note, and thereupon he executed to her a deed.

He denies that he made any misrepresentations in regard to the land or its value; alleges that, since he conveyed the land to Mrs. Hoge, she has sold and conveyed it to John Middleton, who was at that time in possession, and exhibits his deed to Mrs. Hoge and her deed to John Middleton. But he fails to aver, in his original answei*, or in an amended one, which he subsequently filed, consisting of twenty-one paragraphs, that he sold any corn whatever to Mrs. Hoge, or that he ever received a cent for corn! although he most emphatically denied he sold any to her son, W. McKay Ploge — resting upon his denial that he had, by his influence, induced William McKay Hoge to buy the land or the growing crop, and upon his deniál that they w'ere not worth the price at which he sold them. Finally, he insists, that if it should be made to appear that he had contracted to sell the land and corn to young Hoge, while he wras an infant, that after he arrived at full age he had, by various open and *495distinct acts, ratified and confirmed liis purchase : one of which acts of ratification, as described, by appellant, might not be uninteresting to the curious, and may, therefore, be inserted. That he, Middleton, went to Mrs. Hoge, and tendered a rescission of the contract to her, after her son was twenty-one years of age; but that he gave it out, in speeches in the presence of those who he knew would repeat what he said to appellant, that he should not have the land back, even if he would give thirty-five thousand dollars for it; and having heard what the son said, he made other arrangements. Instead of detailing the rumors he had heard, why did he not state the reply of Mrs. Iioge to his proposition to take the land back ? It was made to her, as he says, and she held the legal title. It ma}r be that her reply corresponded with that part of her deposition in which she states: “I know my son washed II. C. Middleton to take the farm back, and to give to my son back his money, both before he was of age and since he is of age. I believe he did not desire or wish to take one third of the money back, and give up the farm.”

This account of appellant, when examined, and which he gave as evidence of a ratification of the contract, amounts to nothing. The offer, according to his own statement, wms not made in the presence of young Hoge; and if it, in fact, had been made to his mother, it may be justly inferred, from her evidence afterwards taken, that she would have accepted the offer; and that is made the stronger, from the fact that he withholds the answer of Mrs. Hoge.

But he further alleges, that after appellee arrived at full age, he prevailed upon his mother to sell the land to John Middleton, and the sale was made by his procurement; and, by that sale, he and his mother put it *496out of their power to rescind the contract; he having, before that, gone upon the land with his mother, soon after the sale was made to her; and that they continued to live on it and cultivate it for more than one year after he was twenty-one years of age, he managing and controlling the same under a written authority from her, until it was sold by his direction.

Appellant knew, when he went to Wheeling with appellee, that he was a minor- — that he distinctly states in his pleading; and he also positively and emphatically denies that he had made any sale or contract for the sale of the land and corn before they left for Wheeling, assigning the non-age of appellee as the reason there.for. It becomes important, then, to ascertain from the evidence how the truth is in relation thereto.

J. P. Hill proves he drew the contract for the sale of the land on the 20th of August, 1864, which was signed and delivered by Middleton to Hoge. He also drew the note for the deferred payment for the land, and saw it executed; that he saw the check drawn and delivered for the cash payment for the land and corn, on which the money was received.

Mrs. Hoge proves that the writing evidencing the sale of the land to her son was shown to her at her house in Wheeling; that both parties told her of the sale at the time; that the cash payments had been previously made, and that she paid nothing herself, and had nothing to pay.

Other witnesses prove that they heard appellant say he had sold the land to W. McKay Hoge; and Whitaker proves that Middleton and Hoge both told him the contract for the sale had been made on the 20th of August, 1864; but that they had gone to Mrs. Hoge’s residence, in Wheeling, and changed it.

*497It is, therefore, as certainly established, that the contract for the sale was made with W. McKay Hoge by H. C. Middleton, as any fact can be established by human testimony. And it is difficult, to perceive why the denial was made, unless driven to it by a consciousness of the want of merit in his defense, and the magnitude of the undertaking to sustain it.

But it has been urged, and not without effect, that the sale of the land — one hundred acres for two hundred and twenty dollars per acre — was no speculation — a contract not to be coveted; and to uphold that position, air examination and estimate of the gold value of the currency, in which the payments were made, is gone into, and the price of the land estimated by the gold standard, ignoring altogether the fact illustrated by the history of that period, and established by the evidence in this cause, that the price of land did not advance with the price of gold, but that sales of real estate were almost universally made for currency, and land could be bought then for about the same price in currency that it had been selling for previously in par funds.

But waiving the further consideration of the evidence of the value of the property, compared with the price given, I propose to show by the acts of appellant, H. C. Middleton himself, that he regarded the contract of sale most advantageous to himself — a speculation which he was most anxious to realize, and place beyond all contingency. If this was not so, why was appellant ■then willing to leave home, travel to Virginia, paying not only his own expenses, but those also of appellee, to substitute Mrs. Hoge as the ostensible vendee, in place of her son? The travel to Wheeling involved an outlay of money, doubled, by advancing to his compan*498ion his expenses, and that, too, without knowing certainly whether Mrs. Hoge would permit her name to be used in that way.' The trip cost, besides the money* some labor or inconvenience, and loss of time; and the expenses -were greater than they would have been by a direct travel to Wheeling, for they went by New York, on an excursion of pleasure, as John W. Middleton proves. That appellant would have incurred so much expense in money and time, to carry out a contract which was neither desirable or profitable, can scarcely be imposed upon the greatest amount of credulity.

But as a further illustration of the efforts to show that the land, in the fall of 1804, was worth twenty-two thousand dollars in currency, and had, in less than two years thereafter, when Hoge sold it, depreciated to fourteen thousand dollars or less, many of the witnesses examined, in the estimates of value, were asked what was the value of the improvements on the land, and then the value of the land, the two estimates added, and the sum thus arrived at fixed as its value. But a fact not to be passed unnoticed in this case is, that the note for the deferred payment of seven thousand dollars, executed by Mrs. Hoge to H. 0. Middleton, is not shown by any evidence to have been payable in currency; it is not alleged to have been payable in that way. It was payable, and its payment might have been coerced, in gold, and it was secured by a lien on the land; he got, therefore, the one half of the currency value of his land in that which was equal to par funds, and, in addition, got fifteen thousand dollars in currency, -showing a clear speculation. of tlie difference between fifteen thousand dollars and seven thousand dollars in currency, according to appellant’s own theory.

*499But when, or from whom, did appellant learn that young Hoge had discovered the fraud in the QuarterMaster’s Department in Nashville, and had been paid by the guilty parties not to disclose it? He knew the fact, and he also knew that the money which was paid to him for the land was the same that young Hoge got as his reward for keeping “the matter quiet;” because he communicated these facts to the mother; but how he learned them, and by Whom the money was paid to W. McKay Hoge, is beyond any development in this record.

With this knowledge, how easy would it be for a designing man of sense to use it to his own advantage over an inexperienced youth, with whom he had become intimate, by alluding to the probability of detection, the danger of the loss of the money, and other more serious consequences; and if there was a consciousness of guilt, a desire to secure the money might facilitate the work. But passing by the charge against him, communicated to his mother by appellant, I cannot resist the conclusion, from the evidence as developed, that a fraud in fact was perpetrated on appellee, which no sophisti-y can conceal, and no rhetoric can palliate, and for which the contract should be rescinded.

But there are other reasons why the judgment of the court below should be approved substantially. It is not disputed or controverted that appellee’s disability, under which he labored on. the 20th of August, 1864, when he first contracted with appellant and parted with his money, would have been a good ground for setting aside the contract, if it had not been changed, and he had done no act by which he lost that right. When the pretended contract was entered into, in Wheeling, by which his mother was substituted, he was still laboring under the disability of infancy. Up to that time, although he had *500parted with a lafge sum of money, he had the bond of a responsible man for a title to a valuable tract of land. But by the last arrangement he surrendered his bond for a title, and instead thereof, the land was conveyed to a third person, without any consideration or available security to him for the money he had parted with. Having no estate or interest whatever in the land, as is asserted on bcfiulf of appellant, he had then been deprived of both money and land.

If there were no other facts in the record, this, of itself, it seems to me, is sufficient to show that there was a power and influence over appellee which he could not resist. The last arrangement placed him in a worse condition'than the first, unless it was advantageous to him to give up the money and land to obtain a discharge from .the payment of the note of seven thousand dollars for the unpaid purchase mo .<7, vhich I think very probable.

I proceed now to ihquire whether appellee has put it out of his power to vacate the contract, by having ratified it after he attained to his majority. That I concede may be done without a formal undertaking or promise to do so.

In Deason, &c., vs. Boyd O'Hara (1 Dana., 45), this court held, that a failure for a period of ten years to notify the party of a disaffirmance, and a sale of the •thing received in consideration of the contract, after the plaintiff arrived at full age, was a ratification of the contract, and would preclude him from avoiding it. But the court did not regard, or at least did not so declare, that the sale of the thing received was alone sufficient; and in Parsons on Contracts, 1 vol., 272, it is said the ratification must be' made with the deliberate purpose of assuming a liability from which the party knows he is discharged by law, and in nowise *501responsible, and it must be directly to the party himself, or his agent. (See, also, authorities referred to in note.)

Ip 2 Kent's Commentaries, 255, note a, the doctrine as laid down is: that to give validity to a voidable contract by the ratification of the party, he must be fully apprised of bis rights, and do the act deliberately, and upon examination.

In Tucker vs. Moreland, 10 Peters, 73, Judge Story said, after commenting on an instruction which had been submitted to a jury: “Without undertaking to apply this doctrine to its full 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 lo establish a clear intention to confirm the deed after a full knowledge that it was voidable.” And this he applied to a deed conveying real estate, showing that be did not regard any difference to exist, whether the contract was executed or merely executory. Many other authorities might bé referred to on the same point, but it is deemed unnecessary.

There never lias been a direct or expressed confirmation of this contract by W. McKay Hoge; that is not asserted on the part of appellants; bat it is contended that he, by his acts and declarations, has ratified it— that it has inferentially been ratified. The original' deed from H. C. Middleton to M. A. Hoge is in the record. The date, as originally written, has evidently been changed, as is apparent from the face of the deed; but the indorsement shows it was acknowledged the 1st of April, 1865, but was not left then in the office, and was not lodged for record until the 15th of January, 1867, fifteen days after the summons was exe*502cuted on H. C. Middleton in this case. Where it had been from the 1st of April, 1865, to the 15th of January, 1867, is not explained. John Middleton purchased the land from Mrs. Hoge before the deed was recorded. He knew it was in existence, and I presume knew where it was. But the suit was brought in December, 1866, before the. deed was recorded, and in a year and one month after W. McKay Iioge was twenty-one years of age. How long was it before the suit was brought that Hoge had learned that he could avoid the contract after he was twenty-one years of age ?

In Aug'ust, 1866 (the 24th or 25th day), W. C. Whitaker sought an interview with Hoge on the business of a client who had a debt on the latter, which he was anxious to make, and he therefore inquired into Hoge’s condition; and having learned the nature of the contract for the land, and the price paid, Whitaker proves he told him the price was a ruinous one, and he thought he could set it aside for fraud. Hoge replied that it could not be done; that Mr. Middleton had taken legal advice how the business should be arranged, and had gone to Wheeling, and had all the papers drawn up in the name of his mother, so as to put it out of his power to avail himself of any right that he might otherwise have had to set aside the contract.

J. S. Barrett proves the plaintiff came to him on several occasions, during the summer of 1866, and begged of him to intercede and try to induce the defendant (Middleton) to take the land back, and give up the note. He proposed to take six thousand dollars in cash, and the note Middleton held on his mother, for the land.

It is scarcely credible that he would have begged Barrett to intercede to get the contract set aside at the sacrifice he proposed, if he had known or believed he *503could have done it by law, and without the sacrifice. But Whitaker’s statement is clear, distinct, and intelligible, to the point that Hoge then did not believe that he could avoid the contract, which he communicated to H. C. Middleton, and he assented to it. Nor is it strange or unreasonble that he should entertain that opinion. He knew appellant had first beguiled him into the contract, then had enticed him to Wheeling, Virginia, under a promise that they would visit the fashionable places of resort in the eastern States, and when they got to Wheeling, the contract was changed into his mother’s name, who he knew labored under no disability; and even after the interview with Whitaker, it is morally certain that he believed he was without legal remedy.

It is clear, therefore, that when the acts transpired, and the declarations were made which are claimed to have amounted to a ratification of the contract on the part of W. McKay Hoge, he was not apprised of.his legal rights, and that he could disaffirm the contract; and, consequently, is not, and cannot be, precluded thereby,

But it is contended that appellee advised and procured the sale to be made of the land by Mrs. Hoge to John W. Middleton, and that he has put it out of his power to restore the land, and is, on that account, not entitled to the relief he seeks. That objection is easily answered. In an amended petition filed 24th of May, 1867, appellee says defendant, II. C. Middleton, is now the owner, and in possession of said farm, and has been since the pretended sale to John W. Middleton, which was avowedly to John, but was in fact to him, II. C. Middleton. That allegation is not denied. Moreover, Whitaker proves that II. C. Middleton informed him he had canceled the contract for the land. Wharton proves that II. C. Middleton and himself were talking about a trade of real *504estate, he to trade Middleton property in Louisville for his; Middleton’s; farm, and Middleton told him this property belonged to him. The examiner wrote the statement of two other gentlemen, Messrs. Black and Peacock, as having proved the same fact; but he was so unfortunate as to have misunderstood both of them, as they afterwards stated on oath. The evidence I regard as sufficient without that, however, to establish the fact. But even if he should not be the owner of the land under the last purchase, what would be his condition? I admit the general rule to be, that when an infant arrives at age, and seeks to avoid an executed contract, made while he was an infant, he must restore what he received. But if, as in this case, a party trade with an infant, knowing at the time he is an infant, and after-wards aids, or is instrumental in getting the infant to dispose of'the property, he would not be in a condition to demand restoration.

In Bailey vs. Bamberger (11 B. M., 113, 115), this court said: ‘‘No doubt, if one should take advantage of an infant, or should overreach or defraud him, he would be so guilty of wrong himself that he could not demand a restoration of the consideration received by the infant, before the latter could avoid his contract.” In any view of the case, therefore, which I have been able to take, the judgment of the court rescinding the contract for the land is right, and should be affirmed.

As to the corn, Finley proves he assisted in gathering and having the coni put in the crib. It was not stripped entirely of the shuck, but was thrown in with part of the shuck on, and all the corn grown in the field was gathered and put in that crib, and he supposed there were about seventy barrels. Montfort proves he measured the crib, and it will hold of shucked corn one hun*505dred and twenty-eight barrels, and if thrown in with part of the shuck on, close snapped, it will hold one fourth or one third less. Steiner, a witness for appellant, proves he helped gather the corn, and it was all put in the crib half shucked, except about one fifth, which was left standing out.

The master, in his last report, fixed the quantity at seventy barrels, and the price at four dollars per barrel, making two hundred and eighty dollars for the corn; and the judgment fixed the value at that sum. But it seems to me, from the repeated affirmations of the plaintiff below to that effect, the corn should have been valued at seven hundred and fifty dollars, and for that alone the judgment should be reversed as to the cofn; the difference of value fixed in the petition of appellee, and the amount the judgment was rendered lor by the court below.