Upshaw v. Gibson

Estoppel. Infant feme covert. Not estopped by acquiescence in sale of her property. An infant feme covert can recover her personal property sold in her presence by her husband, with her knowledge and without objection on her part or any notification to the buyer at the time that she was the owner of the property, although the rights of mortgagees from the buyer have supervened.

Eubok to the Circuit Court of Yazoo County. Hon. W. B. Cunningham, Judge. This was an action of replevin by the defendant in error, trustee in a deed of trust given by one Humphreys on some mules. Mrs. Upshaw petitioned to be made a party defendant to the suit on the ground that the mules belonged to her. By consent she was made defendant; and the case going to trial before the circuit judge, without a jury, on the single question of title to the property, he decided in favor of the plaintiff, and Mrs. Upshaw brings the case to this court. An infant is not estopped even by his deed. Coolc v. Toumbs, 36 Miss. 686. It has been held that the doctrine of estoppel is inapplicable to infants. Tyler on Infancy and Coverture, § 64; Brown v. McQune, 5 Sandf. 224. A deed of property by an infant married woman is invalid and not binding upon her, unless ratified by her after she becomes of legal age. Marlcham v. Merrett, 7 How. (Miss.) 437; Sanford v. McLean, 3 Paige, 117; Cason v. Subbard, 38 Miss. 45. The judge below held, however, that notwithstanding Mrs. Upshaw was an infant and married woman, she was estopped by her acquiescence. The contract of a married woman being void, it cannot be ratified unless by deed in the mode prescribed by statute. Positive acts of encouragement, which might operate to estop one sui juris, will not affect one under legal disability; and a wife cannot do or forbear to do any act to affect her property, unless settled to her separate use. Tyler on Infancy and Coverture, § 541. The above principle is deduced from the decisions of the courts of Pennsylvania, Maryland, and other states where the statutes in' regard to married women are similar to ours. As to the general doctrine that ordinarily, under facts like' those presented in this case, the party would be estopped, there can be no doubt. 2 Smith’s Leading Cases (5th Am. ed.), 660, 661. The question in the case at bar is, how far the principle is applicable to an. infant feme covert. At page 653 of 2 Smith’s Leading Cases (5th Am. ed.), in the American notes, the subject is summed up in the following language: “ It has sometimes been doubted whether the favor which the law shows minors should not extend to protecting them against the loss of that by an estoppel arising out of their words and actions, which they were not permitted to part with by a direct contract. It is evident that, where a contract is voidable, any estoppel which is solely founded upon it must be invalid. Brown v. McQune, 5 Sandf. 224; but as minors are equally liable with adults for torts, it would seem they may be barred by an estoppel growing out of a course of conduct which is fraudulent, or equivalent to fraud in itself or in its consequences. Barham v. Turbeville, 1 Swan, 437; Whittington v. Wright, 9 Ga. 23. Yet, as an equitable estoppel must always be founded, either wholly or in part, on the wrong of the party estopped, the age of the minor should be taken into consideration in deciding on his guilt or innocence, and he should not be barred by what he has done or said, unless there is sufficient reason for believing that he was cognizant of his own rights, and aware of the injurious effect which his conduct might produce on others.” While infants and married women are not bound by estoppels by deed, they are bound by equitable estoppels. Herman on Estoppels (ed. of 1871), §§ 416, 501, and authorities cited. “ If an infant suffers another to purchase his property without informing such person of his ownership, he cannot recover the property of the purchaser. An infant standing by and seeing his property mortgaged, saying nothing, cannot after-wards claim the property as his.” Herman on .Estoppels, 481, 482.