#### DIBBLE AND BROTHERS *against*ALLEN JONES.

Where the purchaser of an infant’s land from him, brought a bill to compel a performance of the agreement, which was in writing, on the ground that he, in combination with his father, fraudulently represented' himself to be of age, and it appeared that the purchaser had notice that there-was great doubt as to the seller’s age,.and it appeared also- that the bargain was a bad one on the part of the infant, who was under the control of his father, and that the latter assumed the whole control of the negotiation, and received.the benefit of the price,- the Court refused to compel a specific performance.

Cause removed from the Court of Equity, of Lenoir county.

On the fifth day of May,. 1856, the defendant attempted to convey to plaintiffs, by deed, a tract of land in Lenoir county, described by metes and boundaries, as alleged in the bill;, for a valuable consideration, and- a paper writing in the-form of a deed of bargain and sale, was signed by the defendant, hut a seal which was necessary to give tbs paper validity as a deed, was accidentally and inadvertently omitted' to be affixed. The consideration expressed in. the said paper-writing’ was $450; which was then and there paid to the defendant in one buggy at $150, and one other buggy at $115; one note on Ered.. Jones for $20; one do. on A. E. Walters for $50.50;. one do on C. W. Holland for $20.69; one do. on Jesse White for $8.15 ; one do on Stephen Hines for $60.67; one do. on W.. Gay for $13.40, and $1.23 in cash,, making in all, the said sum of $450. The plaintiffs, in their bill, allege that after the negotiation for the purchase of this- land was begun, they were informed that the defendant was under age, and fearing it *might be*so,, they had resolved to abandon the further prosecution of the trade, when the defendant, with his father, one Bryan Jones, came to one- of the plaintiffs, Eranldin Dibble, and the said Bryan, in the most positive manner, in the presence of the defendant, assured him that that his son had been of full age ever since the preceding August, and to give color to such assertion, exhibited, in the presence of defendant, a small testament, on a leaf of which were *390recorded the names and ages of the said Bryan’s children, and among them the name and age of the defendant, from which it appeared that the defendant was of the age represented by the father, and the said Bryan assured him further, that those entries had been made by him, and were true; that the defendant, heard all this and assented to it, and that, confiding in their representations, the bargain was closed as above stated; that, if it be, that the defendant was not of full age, there was, between the defendant and his father, a fraudulent combination to impose that belief on the plaintiffs and cheat them out of their property. The bill further states that the defendant, availing himself of the defect in the deed, is asserting his right to the land, and, is trying to sell it.

Thé prayer of the bill is, that the defendant be enjoined from conveying the land to any other person, and that he be ■compelled to make title to the plaintiffs. From the further pleadings and the proofs, it appears that the defendant was, on the day stated, not of the age of twenty-one years, but would be, in the ensuing August; that the father, who was a reckless and improvident man, and exercised an arbitrary ■control over the son, was the active agent in bringing about this trade, and received the buggies and notes, and used them for his own purposes, and wasted the proceeds of them, so that very little ever came to 'the hands of his son, the defendant.

The cause was set down for hearing on the pleadings and proofs, and sent to this Court by consents

Ho counsel appeared for the plaintiffs in this Court.

*J. W. Bryan,*for the defendant.

Manly, J.

The bill, although of doubtful frame and object, seems to be filed with a view either to get the purchase-money back, or to get a title for the land in question. The equity for this alternative relief is based upon one of two grounds: first, that defendant was of age, and ought to be made to adhere to and perform his contract; or, second, that *391he is not of age, but fraudulently represented himself to be so, -whereby complainant was entrapped, and, therefore, defendant ought to be constrained, either to pay or to make title.

"With respect to the first ground, we are entirely satisfied that the proof is against the complainant. The defendant was under age at the time of the contract of sale, as proved by his uncle and aunt, and by other corroborating evidence, so as to leave no doubt of the fact. Such equity, therefore, as depends upon the defendant’s being of full age, is unsupported and falls.

The remaining equity which rests upon the allegation of a fraud, is not left by the proofs upon any satisfactory footing. The principal negotiator in the transaction complained of, was the father of the defendant, who, it seems, was a profligate and spend-thrift, and who exercised an arbitrary control over the son. He asserted the son was of age. The uncle and aunt of the youth had informed the complainant that he was not of age, yet the negotiation is still carried on.

At the closing interview the defendant is present. The en-quiry still is, whether he is of age. The father asserts it and the son acquiesces, or, according to one witness, repeats the assertion. A leaf from a book with names and ages inscribed, is exhibited by the father, and the bargain is closed. The purchase is made with two buggies, a lot of small notes, and $1.23 in cash; and, according to the weight of testimony, a large proportion of the proceeds went into, the hands of the father, who set up a small grocery upon them.

Several features are prominent in this affair, that destroy plaintiff’s equity.’*' In the first place regarding it in the most favorable light, the complainants deal with a youth, not of age in fact, but according to their conclusion, just of age, and buy of him his farm for buggies and small notes. The father’s presence afforded no protection, for he was a spend-thrift, and expected to enjoy what was received.

The trade, under such circumstances, without further evidence, is not entitled to favor in a court of equity. It is a sharp dealing with the folly and recklessness of youth.

*392There is another feature in this transaction which is opposed to the plaintiff’s equity. They had sufficient warning that defendant was not of age, to induce fair and prudent men to desist, and yet they persevered, choosing' to run the hazards for the gain. They ought to abide the result of the chances.

The Court perceives the plaintiffs have- sustained' a serious-loss, but it is one which they have suffered in-sucll way as to-leave them without right to equitable relief. It was chiefly suffered at the hands of the elder Jones, andj to the extent that the younger acted at all, he seems to have- been a-passive-instrument in the hands of the other. The-defendant derived little or no benefit from the transaction-, and as against him,, plaintiffs are entitled to no relief.

The injunction, under which the defendant lies, should be dissolved, and the bill dismissed.

Peh CuRiam,. Decree accordingly..