6821

#### STEELE v. POE.

Minor — Estoppel.—A contingent remainderman has no interst he can assert until his estate vests, and if, while a minor, he executes, without consideration, with his adult cotenants and the holder of the preceding estate a deed conveying land in which he has such interest and he only remains quiet after his majority while the grantee goes into possession of and improves the property, he is not estopped from bringing action promptly after his estate vests to obtain his interest in the land. What acts after majority amount to ratification of contract during minority.

Before DanTzlER, J., York,

November, 1907.

Affirmed.

*408Action 'by Woods M. Steele and Orrie A. Steele against Anna Fyle Roddey Poe, Orín S'. Pfc>e, W. F. Roddey, J. E. Roddey and J. F. Reid. From judgment for plaintiffs, defendants appeal.

*Messrs. Wilson & Wilson,*for appellants,

*cite: The infants received consideration for the conveyance-:*31 Mich,, 182; 27 S'. C., 303. *After majority infants should have dis-affirmed contract:*27 S, C., 304; 59' la., 697. *Plaintiffs have ratified their deed since majority:*4 MoC., 245; 27 S'. €., 300'; 29 & C., 414; 27 S'. C, 302; 52 Miss., 574; 16 Fney., '306, 300'; 31 Minn,, 468; 55 Tex., 281; 4 Harr., 75.

*Mr. Wm. J. Cherry,*contra,

cites: *Deed was without consideration to plaintiffs:*6 Fney., 690'-692; 52 S, C., 317; 16 Fney., 294 ; 26 F. R. A., 183; Tyler on Inf., Sec. 54; 18 S, C., 352; 3 Pom. Fq. Jur., isec. 1293. *Plaintiffs were contingent remaindermen:*10 S. C., 376; 26 S, C., 451; 24 Fancy., 407; 4 Kent. Ooml, 281; Fearmle on Rem., 36'6; 2> Hill 'Ch., 235; 2 Stand. Eq. Jur., Sec. 1040b; 2 F. R. A., 741. *How¡ ratification may be made:*27 S. C, 303; 1 Bail., 31; 11 Johns,, 542; Tyler on Inf., 89; 2 Grant’s R., 96; 36 Am. St., R., 25; 2 F. R. A., 742, *Bstoppel does not apply to infants:*Tyler on Inf., Sec. 54; 18 S. C., *3-5-2;*26 F. R. A., 183. *A prejudicial .contract without consideration by a minor is void: 2*Kent., 236; 1 DeS., 596; 3 DeS,, 482; 76 S, €., 561.

March 24, 1908.

The opinion of the Cburt was delivered by

Mr. Justice Jones.

In the year 1865, one John Gilliam Steele died leaving of force his last will and testament and a codicil 'thereto in which he devised a tract of land containing four 'hundred and seventy^six acres, which includes the tract containing tWa hundred1 'twenty-four and one-half acres, described in the complaint, to 'his grandson, John G. S'teele, *409for life an4 at bis death to his children 'then 'alive in fee simple forever. If he died ¡without leaving any 'children then alive, then over. The said John Gilliam Steele died on the 10th: day of' July, 190'5, leaving the following named children surviving: John A'. Steele, E'. Gill S'teele, Mamie E. Steele, Woods M. Steele .and Orrie A. Steele, the two last named being plaintiffs herein.

It appears that John G. S'teele, prior to August 30, 189'8, became largely indebted to W. E. Roddey & Company and W. E. Roddey & Sion, and to secure said indebtedness bad given a mortgage on the 476 acre tract devised under said will to each of said firms, W. E. Roddey & Son holding the senior mortgage. On August 30', 1898, John G. Steele and his children, J. A. Steele, E. G. Stedle, Marañe B. Steele, Woods M. Steele and Orrie A. Steele, executed a deed of conveyance of the premises herein to W. E. Roddey, J. E. Roddey and J. E. Reid, surviving members of the firm of W. E. Roddey & Co., in satisfaction of the said mortgages. At the time of the execution of this deed, Woods M. Steele and Orrie A. Steele were infants, the former twenty years and the latter sixteen years of age.

Subsequently, on the 13th day of February, 1900, the 'premises in question were conveyed by the surviving members of W. E. Roddey & Cb. to Anna Ryle Roddey P'oe.

John G. Steele died July 101, 190‘5, and this action was commenced August 10th following 'to have these deeds set aside in so far as they attempted to convey the interest in the land of the plaintiffs, Woods M. Steele and Orrie A. Steele, being the two-fifths interest, for a partition of the tract of land mentioned and for damages against the defendant, Anna Ryle Roddey P'oe, for wrongfully withholding the same.

Defendants 'denied all the allegations of the complaint except the execution of the deeds, the death of John G. Steele and the relation of Orín S. Poe to defendant, Anna Ryle Roddey P'oe, and claimed the benefit of the better*410mlents placed -upon said1 premises Iby defendant, Anna Ryle Roddey Poe.

Tile Circuit Court held- that plaintiffs were contingent remaindermen under the will, and 'being infants at the time of the execution of the deed to W. R. Roddey, J. B. Roddey and J. F. Reid, their interest wias not conveyed1; that neither of them at that time understood the nature or consequences of the -act; that they had no- rights to a-ssert in the premises until the falling in of the life estate; and further, that from the evidence plaintiff's- had not ratified or confirmed- their acts in executing the deed on becoming of age. Ac-oorddingly the deed of conveyance to- W. R. Roddey, J. E. Roddey and J. E. Reid, dated August 30, 1898, and the deed by them to defendant, Anna Ryle Roddey Poe, dated February 13, 1900, of the same tract,, were set aside and adjudged void in so far as the same affected the rights of the plaintiffs in the said premises.

The 'appellants contend, first, that the Court erred in finding thiat plaintiffs;, at the time of the execution of the deed to-defendants-, W. L. Roddey *et al.,*did not understand the nature or consequences of the -act. Possibly the Circuit Court was in error in this finding, as the -plaintiffs- were very intelligent and very probably understood that the deed purported to- convey -their interest in the premises in settlement of their father’s indebtedness to- W. R. Roddey and others, but this circumstance does not appear to- be of much importance in determining the is-sues in this- case.

It is also- contended that the Court erred in holding that plaintiffs received no- -consideration for their -conveyance. We -agree with the Court in this finding. The evidence shows clearly that nothing was¡ received by plaintiffs for their interest and that the whole consideration movpd from W. R. Roddey *et al.*to their father, the -cancellation of the latter’s indebtedness to- the former, for which plaintiffs were in nowis-e liable.

It is claimed that the Court erred in finding that plaintiffs had no interest to protect or assert in the property until after *411the -death of -the life tenant, and that he should have found that the interest they conveyed was- a Valuable one and they should have disaffirmed within a reasonable time after becoming of age and without waiting un-til after the death of the -life tenant.

There is no doubt that the Court properly -construed the interest of plaintiffs under the will of John Gilliam] Steele to be that of contingent remainders. *Faber*v. *Police,*10 S. C., 376; *Rountree*v. *Rountree, 26*S. C., 451, *2*S. E., 474. Until the death -of the life tenant they bad no interest or estate, and were not in any position to assert any right or to prevent any one -entering under the life tenant from using and 'building upon the premises. It is true that Mrs-. Pbe put valuable improvements upo-n the property after the conveyance to' her, but is must he remiemlbered that she owned the life estate of John G. Steele and by the -conveyance of the adult remaindermen she had absolute title to- three-fifths of the property. 'At this time It appears that plaintiff Wfao'ds M. S-teele had -attained his mhjo-rity but plaintiff Orrie A. Steele was still a minor. But neither were under any legal duty to assert their right of a mere expectancy as again-st one in lawful possession and use of the p-rop-rety.

It remains to consider whether the Court was correct in holding -that neither of the plaintiffs, after coming of age ratified th-e said conveyance and were not estopped from dis-affirming the same. W'e hold, with the Circuit Court, plaintiffs did nothing to deceive defendants as to- their age; in fact, it appears in defendant’s testimony that they were aware of 'the minority of Orrie Steele. Having received nothing from the defendant in consideration- of their conveyance there Was- nothing retained -by plaintiffs the holding of whi-chi would indicate an. intention to ratify. They did nothing after -becoming of age but remain silent until the vesting of their estate, and thereafter promptly brought this action-. There was' testimfony by defendant Obin -S. P-oe that a short wh-ile after the death of J-oh-n G. Sltee-le the plaintiff, Woods M. Steele, had a -conversation with W. E. *412Roddey in the -office- of the Roddey Mercantile -Company in the presence of W. J. 'Cherry; 'that Steele'said to Roddey that he had -come down to see about his father’s insurance policy; that Captain Roddey remarked, “'Wfe took the insurance policy and that land in settlement of all your father’s -debts;” that Steele said, “The land is all right; you have good titles to the land.” This testimony was corroborated by J. E. Roddey. W. E. Roddey testified that the expression used by Steele -was, “The land is all right.” On the -other hand, Steele testified that no- such remark was made, and W. J. 'Cherry, who Was -present, said he heard no such remark and believed he would have heard it if made. The -Circuit Judge did not undertake to determine which was the correct version of the conversation-.

Under the view we take -of the law it is unnecessary for us t-o determine whether such- declaration wa-s made or not. Assuming, that the declaration was made, even under the law existing previous to; the statute (Section 36-56, Civil Code) -a simple declaration or acknowledgment of a contract after coming of age is not sufficient; there must be some act which necessarily recognizes the existence and efficacy of the obligation. *Chambers*v. *Wherry,*1 Bail., 1.

In *Ihley*v. Padgett, 27 S. C, 303, 3 S. E., 468, the Court states the ways in which- ratification- may be made, thus: “There must be, after he attains bis majority, with a full knowledge-o-f his right, (1) acquiescence from which assent may -be fairly inferred, (2) and adequate benefit enjoyed which has grown directly o-r indirectly -out of the contract, or (3) some direct act or express assent.” It can mot fairly be s-aid that plaintiffs have ratified in -any of these ways, especially -in view of the fact already stated that their rights- did not accrue until a few weeks before this action.

-Section' 2-6-56, enacted originally in 1878, provides: “No action sha-ll be maintained whereby to -charge a person upon any -promise made -after full -age to p-ay any debt contracted during, infancy, or upon ratification- after full age of any promise (excep-t for necessaries) made during infancy, *413unless such promise or ratification shall be made by some writing signed by the party to be charged therewith.” Under this statute it is clear no action could have been maintained by defendants, against plaintiffs, based upon the alleged ratification, in the absence of some writing signed by the parties. To permit defendants to defeat plaintiffs’ action by 'showing a mere parol ratification would 'also be contrary to the purpose of the statute by permitting one to charge another with a contract not legally enforceable. *Mendelsohn*v. *Banov,*57 S. C., 151, 35 S. E., 499.

The foregoing statute was- recently under consideration in the case of *Exchange Bank*v. *McMillan,*76 S. C., 570, wherein it. was held that a minor engaged in business in a foreign State and executing a mortgage there on land in this State may disaffirm the contract here in a foreclosure of the mortgage in t'he absence of a ratification in writing after attaining his majority.

The last cited case further shows that one may, by his conduct after attaining his majority, be prevented from availing himself of the statute under the doctrine of equitable estoppel, as when one ‘by his statements, conduct or silence causes the adversary party to do some act or change his position to his detriment. But there is nothing to show that the declaration of plaintiff Woods M. Steele, if made, caused defendants to do any act or change their position to their detriment.

The exceptions are overruled and the judgment of the Circuit ‘Court is .affirmed'.