DEEDS OF MINORS-SETTING ASIDE-FRAUD.-If a spendthrift minor of very dissipated habits, whose character is well known to the grantee, executes a conveyance of his life interest in land for a grossly inadequate consideration, which he wastes during his minority, he may, on arriving at the age of majority, have the conveyance set aside on the ground of fraud, without restoring the consideration.

S. C. Price, for the appellant.

Hall & Hall, for the respondents.

609 VALLIANT, J. This is an action of ejectment to recover sixty 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 610 one hundred dollars, and on December 31, 1891, Moberly, for the consideration of fiftyfive dollars, assigned his interest as landlord in the lease to the plaintiff and J. D. Ridgeway, the latter afterward assigning his interest to the plaintiff; that afterward, on February 1, 1892, Moberly executed a lease to plaintiff for five years from March 1, 1897, for a total rental of fifty dollars, and three days later executed a deed to the plaintiff for the land for fifty dollars; that at the time he made those leases and the deed, Moberly was under twenty-one years of age; that after he came of age he disaffirmed those transactions and made a deed conveying the land to Williams and Linney, under whom, by mesne conveyances, defendants hold title; that Moberly, while yet a minor, squandered the money plaintiff paid him for the lease and the deed, and did not have it to restore to plaintiff, but W. B. Linney, as attorney for Moberly, tendered it to plaintiff, but he refused it; that after they purchased from Moberly, Williams and Linney sued this plaintiff in ejectment for the land and recovered it in a judgment rendered in 1895, and after that they sold it to defendant Herbert, and defendants now hold under that title.

The answer then proceeds in the nature of a cross-bill in equity, and states separately three causes calling for equitable relief. The first is leveled at the Martin lease, and charges not only that Moberly was a minor when he made it, but that, in the AM. ST. REP., VOL. LXXIII.-30

matter of obtaining the assignment of the landlord's interest in it from Moberly, the plaintiff, who is a shrewd business man, took advantage of the inexperience of Moberly, plied him with whisky until he was drunk, falsely represented that the lease, which was worth five hundred dollars, was of no value, and by that means obtained the assignment for twenty-five dollars. Then follows a reiteration of the statements in reference to the making of the deed to Williams and Linney by Moberly after he came of age, disaffirmance of the transactions with plaintiff, his squandering of the money received while a minor, the tender of the amount by Williams and Linney, their recovery of the land by suit 611 against plaintiff and sale of the same, under which defendants hold as above 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.

1. 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

612 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.

613 But all the issues in this case were submitted to the jury, and neither party has 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 leases and deed on the ground that they had been obtained by fraud, similar to the charge in the answer in this case, 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 614 been brought against you; what, if anything, did Moberly say about whether he was satisfied with the transactions between you 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 plaintiff, 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 instruction 615 for the 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, 18 Am. St. Rep. 569. In that case this court, per Black, J., 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 evidence 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 was also evidence on the part of defendant tending to show that, as soon as it was discovered that Mo