# Henry v. . Root

> New York Court of Appeals · September 5, 1865 · 33 N.Y. 526

URL: https://www.frixlaw.com/law-library/cases/3605953

## Case

- **Full name:** Wm. R. Henry, Appellant, v. Erastus C. Root, Respondent
- **Court:** New York Court of Appeals
- **Decided:** September 5, 1865
- **Citations:** 33 N.Y. 526
- **Precedential status:** Published
- **Opinion:** Concurrence
- **Judges:** Davies, Davis
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3605953

## Opinion text

The note in suit was given by defendant, for the purchase price of lands situate in Nebraska Territory, on the 6th day of January, 1857. The defendant became of age on the 25th day of February following. At the time of receiving the note, the plaintiff, by his attorney, executed to defendant an instrument which, in form, purported to be a conveyance of the lands sold, but it was without seal, and, for that reason, invalid at common law as a conveyance of the title to real estate. No proof of the validity of this instrument, as a grant, under the law of Nebraska, was given on the trial. The legal presumption was, therefore, that the common law prevailed in that Territory, and that it was the same as the common law of this State. ( Holmes
v. Broughton, 10 Wend., 75 ; Starr v. Peck, 1 Hill, 353 ; 15 N Y, 353 ; 2 How., 201 .)
In answer to the defense of infancy, the plaintiff offered, in substance, to show that the defendant took possession of *Page 555
the lands under the instrument above mentioned, and, after he became of age, sold a portion of them to one Perry, for the sum of $100, and executed to him, what is called in the offer, "a deed not under seal," which, it may be assumed, was an instrument like that executed to defendant by plaintiff. This was objected to by defendant, on the ground that he obtained no title by the paper he received; and on that ground the evidence was rejected by the court.
The fact of defendant's infancy at the time he gave the note having been established, it was incumbent upon the plaintiff, and competent for him, to show a ratification of the transaction by defendant after he attained his majority. The rejected offer was made with that view. The court below has sustained the ruling at Circuit, on the assumption that "the defendant never acquired any title to the land for which he gave the note, and that he never conveyed any title to another to any part of it." It is not asserted that, if the legal title had passed to the defendant by the instrument, his entering into possession and sale of a part of the land after he became of age would not have ratified his contract with plaintiff, and given validity to the note. ( Hubbard v. Cummings, 1 Greenl., 11; Robbins v. Eaton, 10 N.H., 561 ; 1 Pars. on Cont., 271.)
It seems to me the court below overlooked the true question on this subject of ratification. Conceding that the instrument, for want of a seal, passed no legal title in the lands to the infant, did it not transfer to him a valuable equitable interest, which he could enforce and maintain against the plaintiff? Failing as a deed, it contains sufficient to constitute it a contract of purchase and sale between the parties, and it contains an agreement of warranty by which plaintiff undertakes "to warrant and defend the above property against the lawful claims of all persons whomsoever," with a specific exception. The fact that it is executed by but one of the parties, is no objection to its validity as a contract. In Worrall v. Munn (1 Seld., 229), it was held by the court that such a contract "can be enforced either at law or in equity against the vendor, and wanting mutuality *Page 556
is no defense." It is upon sufficient consideration; and the offer was to show that the defendant entered into possession of the land under it. Under such a state of facts the rights of the infant under the contract would, in the courts of the State, be very clear. Upon the basis of this instrument and his possession under it, he could, on attaining his majority, have elected to enforce his equities by compelling the plaintiff to execute a proper conveyance; and I can conceive of no defense the plaintiff could have made, beyond, perhaps, the protection of payment of the consideration money, which the court would have given him. Who can doubt that on discovery by a vendee that a supposed deed of his property, of which he has taken possession and for which he has paid or secured the consideration, is defective for want of a seal, he may call on his supposed grantor to execute a perfect conveyance, and enforce his call by suit, if the vendor unjustly refuse? When the defendant became of age, he was under no obligation to have taken that course. The instrument as to him was voidable, and he might undoubtedly have avoided it, abandoned the possession of the lands and repudiated his note. He did not elect to do so. On the contrary, if the offer be true, he retained the possession, several months afterward sold a portion of the lands to a third party for $100, and executed to him a supposed conveyance, but without a seal. It is essential to the rights of that party, as well as of the defendant, that this should be regarded as a ratification. As to him, the defendant has no defense of infancy to interpose; and unquestionably that person has acquired by his purchase all the rights in the parcel sold that defendant had under his contract with plaintiff. But it is enough for this case to say that the evidence offered tended to show a ratification; for it showed that defendant, after he became twenty-one, elected to deal with the property as his own, and to dispose of it accordingly. I am clearly of opinion that the evidence offered should have been received. The objection that the authority of the plaintiff's agent who executed the instrument was not shown, was of no force. The plaintiff was by the very suit affirming the authority, *Page 557
by offering the supposed deed as his own, and by claiming and enforcing the note given for the consideration. And, under such circumstances, it was not necessary he should give evidence of the actual authority of his agent to make the instrument at the time it was made. Besides, the case passed off altogether on the other ground; and if the court had intimated an adverse opinion on this point, the plaintiff could doubtless have readily cured it by calling himself the agent and a witness.
In my opinion, the judgment should be reversed and a new trial granted, with costs to abide the event.
All the judges concurring,
Judgment reversed. *Page 558

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3605953. Public record. Not legal advice.