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DOUBTS as to the Accuracy of Lord Mansfield's Argument in the Case of Zouch v. Parsons, with Respect to the void and voidable Acts of Infants.

IN a former communication I ventured to throw out a doubt as to the force and accuracy of the reasons upon which my Lord Mansfield relied in that part of his argument upon the case of Zouch v. Parsons, where the ground of the distinction between the void and voidable acts of infants is considered; and I at the same time proposed to remit an examination of those reasons for the use of the LAW JOURNAL. Every lawyer must hold the memory of so exalted a character in the greatest respect, but it is impossible to study many of his arguments and not see that his lordship's anxiety to support substantial justice and the equity of the case, sometimes, induced him to look with less favour upon established principles and authorities, than had been usual with most of his predecessors upon the bench. The argument upon the second question, in the case of Zouch v. Parsons,* may perhaps be regarded as one instance of it. The doctrine advanced by his lordship in that case is, that it is the solemnity of the instrument, and not the semblance of benefit to the infant which renders an infant's conveyance voidable only; and secondly, that there is no difference in this respect between feoffments and grants, and other deeds whose nature it is to convey an interest; and consequently, that the grant, lease, and release, &c. of an infant, where there is no semblance of benefit, is not void in point of operation, but voidable only. Now on the other side. at will be contended, that the genuine conclusion, which the authorities in the books sanction, is, that it is the semblance of benefit to the infant which renders his conveyance voidable only; that the only exception to this is the case of a feoffment made by an infant in person, and, therefore, that the grant, lease, and release, &c. of an infant, where there is no semblance of benefit, are in point of operation totally void. The object of the proposed examination is to disprove the former, and to support the latter propositions.

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His lordship, in the first place, relies upon the following passage in Perkins, sect. 12, "All such gifts, grants, "or deeds, which do not take effect by delivery of his "hand, are void; but all gifts, grants, or deeds, made by "infants by matter in deed or in writing, which do take effect by delivery of his hand, are voidable by himself, "his heirs, and by those who have his estate. The words "which do take effect' are an essential part of the defi"nition," said his lordship," and exclude letters of at"torney or deeds which delegate a mere power, and con86 vey no interest."

Now we are prepared to contend, that the true signi fication of the passage just cited from Perkins is directly the reverse to that which the court put upon it in the case of Zouch v. Parsons; for Perkins does not, by the words gifts, grants or deeds, mean the instrument of conveyance, but the act itself; because from his speaking of gifts, grants or deeds, by matter in deed or in writing, it is clear that he alludes to an act which may either be by writing or not, and consequently he cannot mean a conveyance, nor be taking a distinction between the solemnity or want of solemnity in the instrument which records the transaction. What then is the sum and substance of the distinction taken by Perkins in the words, which do not take effect by delivery of the infant's hand? Is it not, as I have observed in page 59, that where the substance or thing itself as the land in case of livery of seisin by the infant in person, is delivered by the hand of the infant, such act is voidable only; but where the substance contracted for or thing itself is not either in point of fact or by the particular instrument of conveyance, capable of manual transmission, as for example, where there is a grant of a rent, or other incorporeal hereditament, or where there is a conveyance by lease and release, or other instrument where livery is not inade, that in such cases the act is totally void. That this was Perkins' meaning is evident from the examples which he puts in the next section,* for the purpose of illustrating that very proposition. "And therefore" says Perkins, "if an infant make a deed of feoffment, and a "letter of attorney unto a stranger to make livery of seisin, and he make livery of seisin by force thereof, he "shall be taken for a disseisor." But he would not, it is

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* Sect. 13.

certain, have been taken for a disseisor if the instrument had not been totally void. Had it been voidable only, he would have had a sufficient authority for his entry to make livery of seisin until it was avoided. As the example just extracted is the case of a power of attorney, it should be observed here that the court in Zouch v. Parsons, asserted that there was a difference between instruments, which delegate a mere power and those which convey an interest; and upon the strength of that assertion. the advocates for his lordship's doctrine might perhaps say that the case, put by Perkins, of a power of attorney is an exception to the general rule, and does not effect the general question; but upon that assertion of his lordship, I have to remark, that it was by no means new. A similar distinction had been taken by counsel, arguendo, in the case of Thomson v. Leach,* and there the whole court held that the reason is the same to make them both void. What possible reason can there be for any difference between them? Powers of attorney, as deeds or instruments, take as much effect by the delivery as grants do. It is as essential that the former should be delivered in order to render them perfect instruments of their kind, as the latter. But Perkins, in the same section, gives another example which steers clear of any such objection." If an infant being seised of a carve of land, grant a rent-charge to be issued out of the same carve by deed, and the grautee distrain, he shall punish him as a trespasser; notwithstanding that the infant did deliver the deed with his own hand." Now if the deed of grant had not been absolutely void, the intended grantee could not have been punished as a trespasser, because if it had been voidable only, he would have had a right to distrain for his rent so long as the grant continued in force, that is, until it was avoided. Perkins, therefore, is an authority that the grants and such like instruments of infants are void, but that where the substance or thing itself is delivered de manu in manum from the infant to the feoffee, as in case of livery of seisin in person, there the act is not ipso facto void, but only voidable. His lordship observed that the words in Perkins which do take effect,' are an "essential part of the definition, and exclude powers of

*See 3 Mod. 296. 1 Lord Raym. 313.

"attorney, or deeds which delegate a mere power and convey no interest." True, the words are essential, but they only form a fragment of the essential part of the definition. Let us take the whole, and then see what the definition imports. The expression of Perkins is not merely which do take effect,' but take effect by delivery of his the infant's own hand. Such as do take effect by delivery of his hand are voidable only, but such as do not take effect by delivery of his hand are void. Then put the following_questions, and see what Perkins is an authority for. Does a feoffment, with livery by the infant in person, take effect by delivery of the infant's own hand? Yes; because the land itself is transferred from the hand of the infant to the feoffee; and therefore such a feoffment, by an infant, is voidable only, and not void. Does the grant of a rent, a lease and release of the land, or a power of attorney, take effect in any case by the delivery of the hand? No, but by the delivery of the deed. The grant, lease, and release, &c. and power not taking effect therefore by the delivery of the infant's hand, are void ab initio, and not voidable only. Do not letters and powers of attorney, as legal instruments, take effect by delivery of the deed equally with grants, &c? Are not the same formalities requisite? They certainly are, and consequently there is no substantial reason why an infant's delivery should give effect to his grant, but not give effect to his power of attorney. Both, however, are, according to Perkins, void. That the construction which I have given of the passages in Perkins is the true construction, I am the more firmly convinced from the circumstance, that those very passages are relied upon in Shepherd's Touchstone,+ as an authority for the doctrine that feoffments, which take effect by delivery of the infant's hand are only voidable, but that grants, &c. which take effect by delivery of the deed, are void. The cases in the year books also, to which Perkins refers, favour the interpretation which I have submitted; That it is the delivery of the substance or thing itself, and not the delivery of the deed or evidence of the transaction, which renders the act of an infant voidable only. And that the grants, &c. of infants are void, where there is not a

*Shep. Touch, 232 233.

+ Ubi. sup.

manual transmission by him of the substance or thing itself, is supported by the second book of Finch's Law, page 102, where it is said that" a grant by an infant, un"der the age of 21 years, may be avoided at any time by "entry, action, &c. if they deliver it with their hand as in

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a feoffment, and themselves make livery or a gift of goods "and themselves deliver them: but if they deliver it not "with their hand as in a grant of rent, advowson, &c. or by feoffment by letter of attorney, &c. it is merely void, "and nothing at all passeth." Now here we have the very distinction which I am contending for, viz. that it is handing over the actual possession of the land or goods by the infant which makes the contract or transaction voidable only, and for this reason it evidently is that grants of rents, advowsons, &c. being incorporeal hereditaments, and not capable of manual transmission, are said by Finch to be merely void, and that nothing at all passeth. So in the case of Lane v. Cowper, it was resolved by the whole court, except Gawdy, that the lease of an infant without rent reserved is void, and that a feoffinent made with the proper hand of an infant, is but voidable.

The same argument and distinction is further sup ported by a case in the year book, 26 H. VIII. 2, where the opinion of the whole court was, that, if an infant grant an advowson, within age, to a man and his heirs, and when he comes of age, confirms the estate of the grantee, such confirmation is of no avail, and Fitzherbert said, he might plead that he had not granted by the deed, notwithstanding that it was delivered by him, because nothing passed. And it was said also that if the infant had made livery of the church, that might have altered the case, as if he had given the goods and delivered them kimself, he shall not have writ of trespass any more than he shall have an assize, where he makes livery of seisin himself; but if he had made letter of attorney, it had been otherwise. Brooke, in his Abr. 600 pl. 1, says, the confirmation was of no avail, because the grant was void; and very judiciously adds this observation, and " so ob"serve that livery of the deed of an infant doth not resem "ble livery of the land or goods by him." The case last cited was urged by Mr. Dunning, in the case of Zouch v. Parsons, but Lord Mansfield, when he came to notice the

* See Moure 105, 7th point.

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