Zouch, ex dimiss. Abbot and Hallet, v Parsons
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1765 |
| Date | 23 November 1765 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 1103
IN THE COURT OF KING'S BENCH
S. C. 1 Bl. 575, and cited 1 Brown, 109.
Followed,-v. Handcock, 1810, 17 Ves. 384. Approved, Allen v. Allen, 1842, 2 Dr. & War. 338. Referred to, Spachman v Evans, 1868, L. R. 3 H. L 244; Burnaby v. Equitable Reversionary Interest Society, 1885, 28 Ch. D. 419; Carter v. Silber [1892], 2 Ch. 284; [1893], A. C. 630.
zouch, ex dimiss. abbot and hallet, versus parsons. Saturday, 23d 1765. [S. C. 1 Bl. 575, and cited 1 Brown, 109.] Conveyance of an infant mortgagee is binding, and cannot be avoided by his entry during infancy. [Followed, - v. Hamicock, 1810, 17 Ves. 384. Approved, Allen v. Allen, 1842, 2 Dr. & War. 338. Referred to, Spachman v. Evans, 1868, L. R. 3 H. L. 244 ; Burnaby v. Equitable Reversionary Interest Society, 1885, 28 Ch. D. 419 ; Garter v. Sitter [1892], 2 Ch. 284 ; [1893], A. C. 630.] This was a special case in ejectment : and the question was "whether an infant's conveyance by lease and release was absolutely void, or only voidable." This cause had been twice tried. Upon the first trial, an incomplete case had been drawn up and agreed upon ; which having been argued on Friday 17th June 1763, by Mr. Serjeant Glynn for the plaintiff, and Mr. Dunning for the defendant, Lord Mansfield then observed, that many circumstances were necessary to be known, besides those contained in the case as it then stood ; which was not sufficiently stated, to come at the merits : and if the parties could not agree upon the facts, the cause must be tried over again, and those facts ascertained. It was therefore adjourned at that time, in order for the necessary facts and circumstances to be more completely stated : and, the parties not agreeing to them, a second trial became requisite. It was tried this second time, at the Lent Assizes 1764, for Somersetshire, before Mr. Justice Yates ; when a verdict was found for the plaintiff, subject to the opinion of this Court, upon the following case. Special case. (a) John Bicknell, being seised in fee of the messuages and lands in the declaration mentioned, by indenture of lease and release dated 24th March 1750, and 25th March 1751, conveyed the premises to William Cook and his heirs, by way of mortgage, for securing the repayment of 2801. William Cook afterwards died, leaving John Lamb Cook, an infant, bis eldest son and heir at law ; and also leaving his widow Elizabeth Cook, and the said John Lamb Cook his joint-executors and residuary legatees. John Bicknell, the mortgagor, afterwards brought the title-deeds of the premises to one Mr. John Williams an attorney, and desired him to procure the sum of 4001. upon the same security ; in order to pay off the said mortgage to the Cooks, and for other purposes. Williams applied to the lessors of the plaintiff, who agreed to advance the same : and by indentures of lease and release [1795] bearing date respectively an the 29th and 30th of June 1761, between the said John Lamb Cook (then being an infant of between sixteen and seventeen years of age) and the said Elizabeth Cook, of the first part ; the said John Bicknell, of the second part ; and the said Henry Abbott and Catharine Hallett, (lessors of the plaintiff) of the third part ; the said John Lamb Cook and Elizabeth Cook, in consideration of the sum of 2801. in (a) See 4 Brown, 509. 4 Durn. 51, 63. 1 Vez. 304. 3 Atk. 710. 16 Vin. 481, 486, pi. 3. 1104 ZOUCH V. PARSONS 3 BURR. 1796. the said release mentioned to be to them paid by the lessors of the plaintiff, granted and released, and the said John Bicknell, as well for the consideration aforesaid, as for the further sum of 1201. to him mentioned to be paid by the said lessors of the plaintiff, granted, ratified, arid confirmed the said premises to the said Abbott and Hallett, and their heirs, to hold to them their heirs and assigns for ever. The said Mr. Williams when he drew the last mentioned mortgage-deed, apprehended that the whole principal sum of 2801. continued due to the representative of the said William Cook, upon his said mortgage ; arid therefore expressed that sum to be the consideration paid to them : but, in fact, the sum of 1001. only principal money, and 91. for interest, then remained due thereon ; the said William Cook having been paid the other 1801. in his life-time; and accordingly, at the time of the execution of the said last-mentioned indentures of lease and release, Elizabeth Cook received 1091. being the principal and interest then remaining due to her son and her as representatives of her late husband, upon his mortgage ; and the residue of the sum of 4001. was received by the said John Bicknell from the lessors of the plaintiff. The said John Bicknell continued in possession of the premises from the time of his conveyance thereof to the said William Cook, until the year 1756 ; when he conveyed the premises, by way of mortgage for 2001. to one Thomas Thome, for a term of years, who in March 1762 assigned the said term to the defendant Henry Parsons, in consideration of the sum of 2281. in the said deed of assignment mentioned to be the principal, interests and costs then due from Bicknell to the said Thome : but before the assignment to the defendant, Mr. Williams, then being attorney for the lessors of the plaintiff, gave the defendant notice of the mortgage made to William Cook, and of the assignment of it to the lessors of the plaintiff. On the 27th day of March 1764, two (lays before the clay of holding the assizes at Taunton, the said John Lamb Cook made au entry on the premises, in order to avoid his said lease and release to the lessors of the plaintiff. [1796] The question is " whether the lessors of the plaintiff are intitled to recover the premises." This new ca.se was argued on Friday the 8th of this month, by Mr. Serjeant Glynn, for the plaintiff, in support of the infant's lease and release; and Mr. Dunning, for the defendant, who insisted upon their being absolutely void. Mr. Serjeant Glynri urged, that infancy is a personal privilege ; and that the infant only can avail himself of his infancy: no other person can do so. He cited Whittingham's case, 8 Co. 43, as an authority for him : though he owned that this case is not quite conclusive, as it is confined to fcoffments. Yet it shews, that privies in estate (as joint-tenants,) and privies in law (as lords by escheat,) shall not take benefit of the infancy of another. And this doctrine, he said, applies to all other conveyances whatsoever. If the infant does not object, it is good against all the world. He cited Co. Litt. 377. Co. Litt. 51. Bacon on Uses, 355, and he added, that the doctrine is clearly stated in Humphreston's case in 2 Leon. 216, 218, and Moore, 105, S. C. (there called Lane v. Cooper,) the 7th point of it.* It is not a null agreement; because the person of full age is bound : the choice of standing to it, or not agreeing to it, is not reciprocal. Therefore John Lamb Cook's act was good at the time ; and stands good : and the plaintiff has a good title to recover now. The great point to be attended to, is the benefit of the infant. In the case of an infant's making a lease without reserving rent, it must therefore be void. But a lease made merely in order to bring an ejectment, is good : for, there the infant is not prejudiced. Here, the infant is riot, can not be prejudiced. [1797] The mother alone, being joint-executor with him, had a right to receive the money, and give a discharge for it: and after it was received, the infant was only a trustee. Therefore even with regard to the infant, it is not...
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Fisher v Brooker
...policy of the law was summed up by Lord Mansfield in the leading case of Zouch, d Abbot and Hallet v Parsons (1765), 3 Burr 1794, 1801, 97 ER 1103, 1106: "… miserable must the condition of minors be; excluded from the society and commerce of the world; deprived of necessaries, education, e......