#### Asher v. Bennett, et al.

(Decided April 28, 1911.)

Appeal from Knox Cirenit Court.

1. Deed — Infancy of Grantor — Misrepresentation.—An infant representing himself to be of age, and thus inducing a third person to buy his land and accept a deed for it, is estopped to rely upon his infancy when the grantee in the deed had no notice of his being an infant and was in fact misled by his assertions

2. Judgment — Question of Fact — Belief of Chancellor. — The judgment of the chancellor on a question of fact will not be disturbed because he believed the witnesses for appellee rather than the witnesses for appellant. ,

METCALF & JEFFRIES and EDELEN & DAVIS for appellant. F. D. SAMPSON for appellee.

OPINION OF THE COURT BY

CHIEF JUSTICE HOBSON

Affirming.

On July 23, 1903, Jefferson Taylor executed a deed by which he conveyed to Samuel Bennett and F. D. Sampson all the mineral lying under a tract of land owned by him; on September 1,1903, his sister, Susan Messer, executed to them a similar deed. These deeds were duly put to record. On January 7, 1907, Jefferson Taylor executed two deeds to Charles Butler and Matt Mills and wife, who, on March 6, 1906, conveyed the property to A. J. Asher. On December 3, 1908, Susan Messer executed two deeds to A. J. Asher. These deeds covered the same property which Jefferson Taylor and Susan Messer had previously conveyed to Bennett and Sampson. Asher brought this suit against them to quiet his title to the property, on the ground that Jefferson Taylor and Susan Messer were not of age when the deeds to them were executed in July, 1903 and that the ti$le to the property had passed to him under the deeds executed by them in 1907 and 1908, after they had become of age. Issue was joined upon the petition. On final hearing the circuit court dismissed Asher’s petition, and he appeals.

The circuit court found as a fact that both Jefferson Taylor and Susan Messer were of age in July, 1903, when they executed the first deeds. He also found under the evidence that Bennett and Sampson had bought the prop*362erty in ’good faith and paid for it, relying upon their representations that they were of age, and that Asher’s title was taken with full notice of all the facts. The proof shows that the father of Jefferson Taylor and Susan Messer had a number of children, among whom his land had been divided, and that Bennett and Sampson, in 1903, were buying from the different children their interest in the mineral in the land. The proof is clear that Susan Messer and Jefferson Taylor, who were then both married, represented to Bennett and Sampson that they were of age, and their mother, who was also present, said the same thing. When sworn as witnesses in this case they still assert that they were then of age and admit making the representations referred to. Susan Messer is older than Jefferson. She had been manned several years and had children. Jefferson had considerable beard, stated that he had voted at the preceding election and also that he had been assessed for poll' tax, and produced the sheriff’s receipt for the taxes. Sampson, being desirous of having no question about it, had them both to make an affidavit that they were of age, which they did, and he then paid them the money and took the deed. Both Sampson and Bennett denied having any information that either of them was not of age, or that anything had been said to them to cause them to doubt what Jefferson Taylor or Susan Messer said. On the other hand, several of their brothers and sisters testified that Sampson had been told by some of them that these two of the children were not of age, and this testimony is confirmed by other witnesses who were present. In addition to this, Asher shows that in 1898 a guardian was appointed for Jefferson Taylor, and that the order of the county court appointing the guardian recites that he was then an infant under fourteen years of age. He also produced copies of the school census for 1897 and 1903, showing that Jefferson was twelve years old in 1897, and eighteen years old in 1903, when the deed was made. There is also a witness or two who testified to knowing their age from the age of his children, that Susan was. about two- years- older than Jefferson, or twenty years old-when the deed was made.

In Schmitheimer and Wife v. Eiseman, 70 Ky., 298; Damron v. Commonwealth, 110 Ky., 268; Ingram v. Ison, 26 R., 48; Pace v. Cawood, 100 S. W., 414, Asher v. Sack*363ett, 111 S. W., 833; Edgar v. Gertison, 112 S. W., 831, it was held, that where an infant had conveyed land for a reasonable price, representing at the time that he was of age, and had, thus induced the grantee to part with the consideration, the trade being fairly made, and the grantee having no notice that the grantor was under age, the infant was bound by the deed. It is insisted here, however, that the grantees had notice that Jefferson Taylor and his sister were under age, and that the rule referred to does not for that reason apply. The rule is simply an application of the equitable doctrine that he who misleads another by his solemn assertion of a fact will not be allowed to assert the contrary to the prejudice of the person whom he has thus misled, and so perpe trate a fraud upon him. It will not be applied where the grantee knows that the grantor is an infant, or where, from his appearance, situation, or other circumstances, as a reasonably prudent man, he should know it. It will only be applied when necessary to protect the grantee from what would otherwise be a fraud.

Here there was nothing in the appearance of Jefferson Taylor or his sister to suggest that they were not of age.' They were both married, and their mother, who was present, asserted that they were of age. They not only so asserted, but swore that they were of age. The numerical weight of the evidence is with Asher on the question that Sampson and Bennett had been told that they were not of age. But the circuit judge, who recites in his judgment that he knew the witnesses and the parties, found otherwise, and, on the whole record, we áre unwilling to disturb his finding of fact. Aside from the school census there is little in the evidence to show ■definitely how old these people were, and it does not appear who furnished the information upon which that was based, nor upon what evidence the county court acted in appointing the guardian. There seems to be no record of their birth.

As Asher bought with notice of all the facts, he has no higher equity than they, and as they solemnly asserted that they were of age and thus got the money paid them by Bennett and Sampson, we do not feel justified in disturbing the conveyance they then made after so many years, when, by the rise in values, the property has become more in demand, and so a temptation is held out to set aside the trade that was then fairly made. We give *364considerable weight to the finding of the circuit court, and, on the whole record, we conclude that we ought not to disturb his finding simply because he believed the witnesses of appellee rather than the witnesses for appellant.

It is true that the rule followed in the cases above referred to does not obtain usually in other jurisdictions, but under the principle of stare decisis, we can not depart from it. It is a rule of property, and great confusion would result and much hardship if rules of this sort were departed from; for persons conduct their business on the faith of the rules of property which have thus been declared.

Judgment affirmed.