Thomas, &c., vs. McKay. court in the analogous case of Hammond, &c., vs. Sandford, decided winter term, 1868-9. Wherefore, the judgment is reversed, and the cause remanded for a new trial, and for further proceedings consistent with this opinion. CASE 38-MOTION-JULY 5. Thomas, &c., vs. McKay. APPEAL FROM NELSON CIRCUIT COURT. Motion to set aside sheriff's return of satisfaction of an execution.-The execution plaintiff required a levy and sale of mortgaged land to be made by the sheriff as unencumbered property, and became the purchaser at the amount of his execution. The land having been subjected and sold by equitable proceedings to satisfy the mortgage debt, the execution plaintiff's motion to set aside the sheriff's return was properly overruled by the circuit court. The purchaser's right was subordinate to the mortgage, the same as if the land had been sold as encumbered property. (Covington and Cincinnati Bridge Co. vs. Walker, 2 Duvall, 150.) VILLI CHIEF JUSTICE WILLIAMS DELIVERED THE OPINION OF THE COURT: Appellants had an execution against appellee, which they caused to be levied upon fifty-five acres of land, which appellee had purchased of J. D. Stone, but had Thomas, &c., vs. McKay. not fully paid for, a lien still existing on it for this unpaid purchase price. The levy was made subject to this vendor's lien. No sale occurred until some several renewals of the execution and continuance of the levy, and until finally a venditioni exponas issued, and the sale had under it. In the meantime, Stone had subjected the land to his vendor's lien, and all but seventeen acres had been sold by the judgment of the court. Appellants then had this seventeen acres sold, and bid it in themselves for the amount of their debt. This land had been mortgaged by E. H. McKay to Fulton, previous to the issual of appellants' first execution, and Thomas, by attorney, on the day of sale, demanded that the land should be sold, regardless of the mortgage; purchasing it himself at less than half its value. At the time of this execution sale, N. G. Thomas had attacked said mortgage as invalid in his answer and crosspetition in an equity suit of A. C. Thomas, his assignor, against E. II. McKay; and to his said answer and crosspetition he had made Fulton, the mortgagee, a party, who had answered, setting up his mortgage, and asked its foreclosure some months previous to the execution sale. So N. G. Thomas had actual notice that the mortgage existed, and was seeking to set it aside in equity when he demanded that the officer should sell the seventeen acres of land, regardless of it. Having failed to set aside the mortgage, and Fulton having obtained a decree of foreclosure, the seventeen acres were sold in satisfaction thereof, leaving Thomas nothing; whereupon, he made this motion to quash the levy and sale on his execution, and for another execution against E. H. McKay. Had he succeeded in setting the mortgage aside, he would have made a handsome speculation. It was this chance of speculation he purchased; for he Thomas, &c., vs. McKay. need not have sold the land under his execution until the chancery suit had finally determined the validity of the mortgage; but having himself demanded the land. should be sold, regardless of the mortgage, he has estopped himself from complaining that the levy and sale secured him nothing. Had he required the land to be levied on and sold subject to the mortgage, and had bid the amount of his debt, after the foreclosure of the mortgage and sale of the land, he could have had no relief, as decided by this court in Covington and Cincinnati Bridge Company vs. Walker (2 Duvall, 150), why should he have any relief when he seeks a sale with greater prospects of gain? He obtained precisely what he purchased-that is, the land, subject to the mortgage -hoping to defeat it, and thereby make large gains. Whatever may have been his rights, had the officer so levied and sold without his interference, he has none as it is. Wherefore, the judgment dismissing his motion is affirmed. Middleton, &c., vs. Hoge, &c. CASE 39-PETITION EQUITY-JULY 6. Middleton, &c., vs. Hoge, &c. APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Mere misrepresentation of value is not, under ordinary circumstances, a vitiating fraud. 2. 3. 4. 5. 6. The law not only allows infants to avoid most of their contracts, but assumes that contracts, not equal and beneficial to them, were procured by fraud. This is constructive fraud, whether there was a fraudulent intent or not; but this prima facie imputation of fraud may be repelled by proof of reciprocity and commensurable consideration, and by the absence of any false suggestion or delusive suppression. In this case it is held, that infancy did not entitle the plaintiff to an avoidance of his contract for the land. 1. Because, long after his majority, he put it out of his power to restore the title. 2. Because he confirmed his purchase First. By his recorded deed, proclaiming his mother as the true and only owner of the land; and, Second. By his continued use of it as her property, held for his benefit. Third. By never offering an avoidance or rescission. Fourth. By his sale to another party. Fifth. By suing for damages for an alleged fraud, and therefore waiving an avoidance on the plea of infancy. A voidable purchase of property by an infant may be confirmed by acts which might not confirm a sale by him; and a sale might be confirmed by acts which would not confirm a promise, and for obvious reasons Less will be required for the confirmation of executed than executory contracts by infants. (See opinion for list of authorities.) An infant purchased and paid two thousand dollars in "greenbacks" for a lot of corn, and consumed it during his minority. In his suit to avoid the contract, the proof showing that the corn was worth Middleton, &c., vs. Hoge, &c. but twelve hundred dollars at the date of the purchase, he is entitled to recovor eight hundred dollars of his vendor, with interest from the date of his payment, payable in "greenbacks." MUIR & BIJUR, GIBSON & Fox, O. F. STIRMAN, BARRETT & ROBERTS, and M. C. JOHNSON, CITED For Appellants, 1 Dana, 612; Marshall vs. Peck. 2 Dana, 45; Deacon vs. Boyd. 4 Met., 310; Stearn vs. Freeman. Tyler on Infancy and Coverture, pp. 80, 81, 82, 87. 9 Metc. (Mass.), 519; Boyden vs. Boyden. 23 Maine, 519; Boody vs. McKinney. 6 Conn., 494; Blaine vs. Bube. 3 Vermont, 353; Bigelow vs. Kinney. 11 Wend., 85; Delano vs. Blake. 8 Greenleaf, 405; Lawson vs. Lovejoy. 1 Pickering, 221; Barnaby vs. Barnaby. 8 N. Y., 228; Jones vs. The Phenix Bank. 10 Peters, 75; Tucker vs. Morland. 11 Johnson, 542; Johnson vs. Carpenter. 3 J. J. Mar., 120; 5 J. J. Mar., 68. 5 J. J. Mar., 285; 6 Dana, 336. 1 Dana, 419; 6 Mon., 398. 5 Yerg. Tenn. Rep.; Wharton vs. East. |