[300] ANNA M. SIMS, Appt. D. WILLIAM EVERHARDT AND ELIZA E. (See 8. C., 12 Otto, 300-313.) Disabilities of infancy and coverture-avoidance of acts estoppel not applicable to infants. 1. If an infant, who is also a married woman, makes an instrument, voidable because of her infancy, the disability of coverture enables her to postpone the act of avoidance to a reasonable time after the coverture is ended. 2. Mere inertness or silence, continued for a period less than that prescribed by the Statute of Limitations, unless accompanied by voluntary affirmative acts, manifesting an intention to assent to the deed, will not bar the infant's right to avoid it. 3. An estoppel in pais is not applicable to infants, and a fraudulent representation of capacity cannot be an equivalent for actual capacity. [No. 31.] Sims, for his own fault. In the month of Assuming, as we think it must be assumed, [306] Argued Apr. 20, 21, 1880. Decided Oct. 25, 1880. in less than two months. This was, however, a little more than twenty years after she attained APPEAL from the Circuit Court of the Unit- her majority. for the District of Indiana. The case is fully stated by the court. Messrs. Robert Rae and Arthur D. Rich, for appellant. Messrs. Edwin B. Smith, David J. Wile and W. H. Calkins, for appellee. Mr. Justice Strong delivered the opinion of the court: This case shows that the complainant was married on the 14th of July, 1844, to John B. Sims. She was then a minor less than seventeen years old, having been born on the 25th of September, 1828. On the 3d of April, 1845, her father, conveyed to her, in fee, the tract of land now claimed by the defendants; and on the 28th day of May, 1847, joining with her husband, she executed a deed for the land to Magdalena Everhardt, the mother of the defendants. The deed, was subscribed by her and her husband in the presence of a magistrate, was acknowledged in due form, and the purchase money was paid. Mrs. Everhardt went into immediate possession, paid a mortgage upon the property, paid taxes, continued in possession and made improvements until her death in 1871. The defendants have succeeded her as her devisees. The circuit court dismissed the complainant's majority, being of opinion that the rule was es- We find no decision of the Indiana courts that ought to be regarded as establishing that rule. When the deed to Mrs. Everhardt was made, July, 1870, and shortly after brought her action some doubts appear to have been entertained to recover the land. This was more than three [307] [301] upon the question whether the complainant was years and a half after she had attained her mathen of full age, and to remove them she signed jority. The Supreme Court held that her disa statement, which was written on the deed, de-affirmance was in time. It was all the case reclaring that she was twenty-one years of age on the 25th day of September, 1846." There is evidence that early in her married life, before the deed was made, the complainant received very ill-treatment from her husband; that he insisted upon her selling the place; that he employed threats; that she became afraid of him; that a look from him would make her do almost anything; and that she knew nothing of any arrangement to sell the property until the deed was brought for her to sign in her own house. On the 14th of February, 1870, the complainant was divorced from her husband, John B. NOTE-Estoppel in pais. See note to Stowe v. U. 8., 86 U. S., XXII., 146. quired. But the Judge went on to declare that had given her the rights of a feme sole in regard to her lands, and empowered her to sue as such without joining her husband. They had denied to a husband the rights which at common law he acquired in the wife's property by the marriage. They had made her lands and the profits of them her separate property, as fully as if she was unmarried, with the single exception that she could not incumber or convey them except by deed in which her husband should join. The effect of the state statute, touching the marriage relation and the liabilities incident thereto, was, in part, considered in Miles v. Lingerman, 24 Ind., 385, where it was said by the Supreme Court of the State: "Under our present statute the wife may bring her action in regard to her own estate as though she were a feme sole. Still, our Legislature has seen proper to continue the protection formerly accorded to her as a feme covert, although as to her power to disaffirm her contracts made during minority her legal disability has been removed. She has the legal power to disaffirm her contracts made during infancy, and to bring her action with out the assent, and even against the will, of her husband." This language, if not a positive assertion of its converse, contains at least a strong implication that her power to disaffirm a conveyance made by her during infancy did not [308] exist at common law, nor before the statutes of 1847 and 1852 were enacted. We find nothing in any prior decision of the Indiana courts that sustains what was said obiter in Scranton v. Stewart. Law v. Long, 41 Ind., 586, to which reference has been made, decided that the deed of a minor, conveying her land for a valuable consideration, is voidable only and not void, and that the right to avoid it on coming of age is a personal privilege of the minor and her heirs. It also decided that when the act of an infant is executed, as when a deed has been made and delivered, the infant must, on attaining full age, do some act to disaffirm the contract, and that such act must precede the commencement of an action. But the case did not define what is a reasonable time, nor rule that if the wife came of age during coverture she was bound to disaffirm the contract notwithstanding her coverture, as if she was a feme sole. In that case the conveyance was made by the wife and her husband before the Act of 1852 was passed. The husband died in 1852. The wife married again in 1853, and came of age in 1854. Her second husband died in 1864, and she married a third time in 1868. It was not until after her third marriage that her suit was brought. She had been discovert during more than four years after her deed was made, and after she had reached her majority, and yet she had taken no step nor done any act to disaffirm the deed prior to the institution of her suit. No intimation is given in the case that she was bound to disaffirm or could disaffirm during her coverture. Nothing, therefore, in Law v. Long supports what was said, but not decided in Scranton v. Stewart. in the facts of the two cases. Mrs. Sims was married before the Act of 1852 or that of 1847 was passed, and while the common law relative to the marriage relation existed. By the marriage her husband acquired a vested freehold interest in her lands, and became entitled to the rents and profits. His control over the usufruct thereof became absolute. His interest extended during the joint lives of himself and his wife, or at least as long as the marriage relation continued. It was an interest capable of sale. When, therefore, the deed was made to Mrs. Everhardt in 1846, it gave to the grantee the wife's right, subject to disaffirmance, and the husband's right to the possession and enjoyment of the profits absolutely When the wife subsequently came of age, she continued powerless to disturb the possession of the grantee, so long as her coverture lasted; for the grantee held not only her right, but that also of her husband. The most she could have done was to give notice that she would not be bound by her deed. Was she required to do that? To answer the question it is important to keep in mind her condition at common law. The land was not her separate estate, such as the wife had in Scranton v. Stewart. In regard to it she was sub potestate viri, incapable of suing or making any contract without her husband's assent, except such as might relate to separate property. She could not even receive a grant of land if her husband dissented. Her disability during her coverture was even greater than that of an infant, and it is settled that an infant cannot disaffirm his deed while his infancy continues. Zouch v. Parsons, 3 Burr., 1794; Roof v. Stafford, 7 Cow., 179. The reason is that a disaffirmance works a re-investiture of the estate in the infant, and he is presumed not to have suflicient discretion for that. Why should not the greater disability of coverture be attended with the same consequences? If a wife cannot contract about any land which is not her separate property, how can she, without the concurrence of her husband, do any act, the effect of which is to transfer the title to land from another to herself ? We are not, however, called upon by the exigencies of this case to decide that a wife cannot, during her coverture, disaffirm a deed which she made during her infancy. The question now is, whether Mrs. Sims did disaffirm her deed within a reasonable time after she attained her majority. What is a reasonable time is nowhere determined in such a manner as to furnish a rule applicable to all cases. The question must always be answered in view of the peculiar circumstances of each case. State v. Plaisted, 43 N. H., 413; Jenkins v. Jenkins, 12 Iowa, 195, and numerous other cases. It must be admitted that generally the disaffirmance must be within the periods limited by the Statute of Limitations for bringing an action of ejectment. A much less time has in some cases been held unreasonable. It is obvious that delay in some cases could have no justification, while in others it would be quite reasonable. But if the law was accurately stated in the Now, in this case, though there was no disafopinion given by the court in Scranton v. Stew-rmance for nearly twenty-one years after Mrs. art, as applicable to a deed of her lands made by an infant feme covert after the Statute of 1852, it by no means follows that it should rule the present case. There is a radical difference Sims attained her majority, there were very remarkable reasons for the delay, sufficient, in our opinion, to excuse it. When the deed was made she was laboring under a double disability [309] [310] -infancy and coverture. Even if her deed and that of her husband had not conveyed his marital right to the possession and enjoyment of the land, she would have been under no obligation, imposed by the Statute of Limitations, to sue until both the disabilities had ceased; that is, until after 1870. It is an acknowledged rule that when there are two or more co-existing disabilities in the same person when his right of action accrues, he is not obliged to act until the last is removed. 2 Sugd. Vend., 103, 482; Mercer v. Selden, 1 How., 37. This is the rule under the Statute of Limitations. But Mrs. Sims could not sue until after her divorce, and until the right the husband acquired by his marriage terminated. And had she given notice during her coverture, of disaffirmance of her deed, it was in the power of her husband to disaffirm her disaffirmance. 2 Bishop, Married W., sec. 392. Giving notice, therefore, which was all she could do, would have been a vain thing. The law does not compel the performance of things that are vain. Mr. Bishop, in his work to which we have referred, says that if an infant, who is also a married woman, makes an instrument voidable because of her infancy, the disability of coverture enables her to postpone the act of avoidance to a reasonable time after the coverture is ended. Sec. 516. In support of this he refers to Dodd v. Benthal, 4 Heisk., 601, and Matherson v. Davis, 2 Coldw., 443. These cases certainly sustain the rule stated in the text. In the former it was decided that an infant, who is also a married woman, has the option to dissent from her deed within a reasonable time after her discoverture, though her coverture may continue more than twenty years. And if this were not so, the disability of coverture, instead of being a protection to the wife, as the law intends it, would be the con[311] trary. We have found no decision that is in conflict with this doctrine, and no dicta even, except those in Scranton v. Stewart. And why should the rule not be thus? The person who takes a deed from an infant feme cocert knows that she is not sui juris, and that she will be under the control of her husband while the coverture lasts. He is bound to know, also, that she has the disability of infancy. He assumes, therefore, the risk attending both those disabilities. tween 1848 or 1849 and 1870 she made but two And again; she never did any act after her We are aware that the decisions respecting But the continued coverture of Mrs. Sims, in 1847. The remaining question is, whether she is estopped by anything which she has done from asserting her right to the land in controversy. [313] In regard to this very little need be said. It is not insisted that she has done anything since she has attained her majority which can work an Mr. George Herbert, for plaintiffs in error. Mr. Charles Hitchcock, for defendant in error. Mr. Chief Justice Waite delivered the opin There are nineteen errors assigned on this record; but those relied on in the argument present in reality but four questions. These are: estoppel. All that is claimed is, that when she It is, however, unnecessary to dilate upon this branch of the case. The judgment of the circuit court was not rested upon any estoppel of the complaintant. Our conclusion upon the whole matter is that the complainant was entitled to the decree for which she asked, and the decree of the Circuit Court is, accordingly, reversed, the record to be remitted, with instructions to enter a decree in accordance with this opinion. 1. Whether the court erred in charging the jury, that "If a person not a party to a note, that is to say, not the payee or maker, writes his name on the back of the note at the time the note is made, the presumption is that he has assumed the liabilities and responsibilities of a guarantor; this presumption, however, is liable to be rebutted by the proof." 2. Whether, under the practice in Illinois, which is regulated by statute, if one is sued as a guarantor of a note, and he verifies his plea of the general issue by affidavit, the plaintiff must prove the execution of the note itself as well as the guaranty. 3. Whether the defendants should have been permitted to prove that there was an agreement between themselves as partners, that neither of them should assume any liability on behalf of the firm out of the line of its regular business, without the consent of the others, and that one of the defendants did not know that the liability sued on was incurred, until long after the notes were made and indorsed, and. that since he learned it he has always repudiated it. 4 Whether it was wrong for the court to instruct the jury that if, as between the plaintiff and the maker of the note, the maker could not use an account on its books as a set-off against the note, the defendants as guarantors could not. As to the first question: The charge, as given, states correctly the law of Illinois, as settled by the highest court of the State in a long series of decisions. Cushman v. ALFRED H. ANDREWS ET AL., Piffs. in Dement, 3 Scam., 497; Stowell v. Raymond, 83 Err., 2. HENRY M. CONGAR. 131 US clxxxiii appx 1. In Missouri, he who writes his name on the back of a note, of which he is neither the maker nor the payee, is prima facie liable as a joint maker. 2. A charge which is more favorable than the one contended for, is not a ground of reversal. 3. In an action against a guarantor of a promissory note, proof of the execution of the guaranty is equivalent to proof of an admission by the guar antor of the due execution of the note. 4. In making a contract which is within the scope of the partnership business, each partner is presumed to be the authorized agent of all, and it is of no consequence, as to its validity as a partnership contract, what the secret understanding of the partners may have been as to the powers of each. 5. Defendants cannot set up a settled and balanced account as a set-off, without showing fraud [No. 38.] or mistake in striking such balance. Submitted Oct. 21, 1880. Decided Nov. 8, 1880. IN ERROR to the Circuit Court of the United States for the Northern District of Illinois. The case is fully stated by the court. Ill., 120. The contract, however, was made in Missouri and was to be performed there. In that State the rule is, that he who writes his name on the back of a note, of which he is neither the maker nor the payee, is prima facie liable as a joint maker. Powell v. Thomas, 7 Mo., 440; Schneider v. Seiffman, 20 Mo., 571; Otto v. Bent, 48 Mo., 26; Baker v. Block, 30 Mo., 225. For this reason it is insisted that the contract is governed by the laws of Missouri, and that the jury should have been so instructed. Admitting this to be true, it is difficult to see how the plaintiffs in error have been harmed by the charge of which they complain. They claim to have been presumptively joint makers of the note, while the court told the jury they were guarantors only. Clearly, the charge as given was more favorable than the one contended for. A recovery could have been had against them as joint makers under the common counts. The court, however, after stating what the presumption from such an indorsement was, went on to say: "The law authorizes the holder of a note to write over the name thus written across the back of the note, any agree ment consistent with that made between the As to the fourth question: A simple statement of the facts is all that is necessary to dispose of this question. The plaintiff was the president of the corporation, maker of the note guarantied. On the books he was charged with moneys paid to him from time to time, and credited with a salary and interest on his investment in stock. After he went out of office, his successor settled with him and paid the balance found to be his due. The books were thereupon balanced. The plaintiffs in error sought to set off against their liability as guarantors of the note, the items which appeared on the debit side of the account, without any regard to the credits. As to this, the court instructed the jury that they "Must be satisfied that the company itself could use the same set-off against the note before the defendants could avail themselves of it, and that if they were satisfied from the evidence that the plaintiff's account stood balanced on the books of the company as kept, then the defendants could not set up the account as a set-off to the note, without showing fraud or mistake in striking such balance." There can be no doubt as to the correctness of this ruling. parties at the time the name was placed there; partners. Under such circumstances, it was of As to the second question: * * A Statute of Illinois provides that "No person shall be permitted to deny on trial the execution or assignment of any instrument in writing * upon which any action may have been brought, * or is admissible in evidence under the pleadings when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit.” Ill. Stat., ch. 110, sec. 34. This action was brought on a guaranty, a copy of which was filed. The affidavit only made it necessary to prove the execution of that instrument. That was done; and that of itself was equivalent to proof of an admission by the guarantors of the due execution of the note. Whether this admission was one that could be contradicted, need not now be determined. It was certainly sufficient until overcome. As to the third question: This covers, substantially, all there is in the True Copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. JOHN W. BROOKS T AL., Appts., APPEAL from the Circuit Court of the Unit ed States for the District of Iowa. A petition was now presented for a rehearing. There is nothing in the case to show or tending to show that the execution of the guaranty was not in the line of the regular business of the partnership. On the contrary it does appear that the partners were the owners of a majority of the stock in the corporation that made the note, and that the note and guaranty were given with a view to the protection and improvement in value of that stock. The trans-ion of the court: action was one which appears to have been en- A petition for rehearing after judgment, untered into for the common benefit of all the der the rule promulgated in Public Schools v. Mr. Chief Justice Waite delivered the opin [107] |