Page images
PDF
EPUB

9. Whether at common law there was a liability for support of one's child, parents or grand-parents. tute of 43 Eliz. c. 2, § 7, and statute of Virginia.

Of the sta

It has been argued that by the common law a parent is bound to maintain his deserted legitimate child; but in the case in which it was so argued the question did not arise; for in that case there was no proof of desertion; it was a case in which the father was contemplating providing for the child by placing it in a foundling hospital, when the child's grandmother applied to have the child delivered up to her, and took it upon an implied undertaking that the father should be at no expense for its maintenance. Urmston v. Newcomen, 6 Nev. & Man. 454, 4 Adol. & El. 899, 31 Eng. Com. Law Rep.

222.

Whatever moral obligation there may be on a man to take care of his child, or of his father, mother, grand-father or grand-mother, it is now clearly established that at common law that moral obligation does not impose a legal liability on a father to support a child, Mortimore v. Wright, 6 M. & W. 488; or on a child to support his parents, Edwards & wife v. Davis, 16 Johns. 285.

When Sir Wm. Blackstone wrote the passage in 1 Bl. Com. 448, 9, he had in view the statute of 43 Eliz. c. 2, § 7, which enacted "that the father and grand-father and the mother and grand-mother and the children of every poor, old, blind, lame and impotent person, or other person not able to work, being of a sufficient ability, shall, at their own charges relieve and maintain every such poor person" in a certain manner and according to a prescribed rate. The statute extends no farther than the law of nature went before. Under it, it has been held that a husband is not obliged to provide for his wife's mother, though he had a good fortune with his wife and the mother is poor. Rex v. Munday, 1 Str. 190. It was considered inconvenient if the wife should have children by a former husband. S. C. Fort. 303. The statute of Elizabeth only extends to natural relations. The father-inlaw is not obliged to maintain his daughter-in-law. King v. Bonoier, 2 Ld. Raym. 1454. And the husband is not liable for the expenses of maintaining the wife's child by the former husband. Tabb &c. v. Harrison &c. 4 T. R. 118; Billingsley v. Crotchet, 1 Brown's C. R. 268; Cooper v. Martin, 4 East 82. The same construction is given to the New York statute, which is a transcript of that of 43 Eliz. c. 42, § 7. Gay v. Ballou, 4 Wend. 403. A fortiori the husband is not

bound to support a bastard child of his wife or a child of such bastard. Menden v. Cox, 7 Cow. 235.

10. Right of action against father for support of child rests on his contract.

When a father suffers his children to live away from him— with their mother-he may thereby constitute her his agent and authorize her to contract debts for their clothing and other necessaries. Rawlyns v. Van Dyke, 3 Esp. 133. Although a man could not be compelled to provide for his wife's children by a former husband, yet if he take them into his family, he may be regarded then as standing as to them in loco parentis; and if after adopting them he go abroad and leave them in the care of his wife, he may be bound by her contracts made for their maintenance and education. Stone v. Carr, 3 Esp. 1. The father has been held liable for the nursing and board of his child though illegitimate, when he adopted it as his own. Hesketh v. Gowing, 5 Esp. 131; Nichole v. Allen, 3 C. & P. 36, 14 Eng. Com. Law Rep. 198. In one case in which he consented to pay an annual sum for its support, it was said he must continue to do so or provide for the child at his own expense or give the most distinct notice of his intention to pay such annual sum no longer. Cameron v. Baker, 1 C. & P. 268, 11 Eng. Com. Law Rep. 388. In a subsequent case wherein such notice was given, it was considered that the by-gone payments were merely voluntary, and that the defendant was not bound to continue them longer than he thought proper. Furillio v. Crowther, 7 Dow. & Ry. 612, 16 Eng. Com. Law Rep. 302. In another case wherein there was no such notice, there was a judgment against the father for the child's board and lodging. Nichole v. Allen, 3 C. & P. 36, 14 Eng. Com. Law Rep. 198, 9.

But no one is bound to pay another for maintaining his children, either legitimate or illegitimate, unless he has entered into some contract to do so. Seaborne v. Maddy, 9 C. & P. 497, 38 Eng. Com. Law Rep. 194; Angel v. McLellan, 16 Mass. 31. A father who gives no authority and enters into no contract, is no more liable for goods supplied to his son, than a brother or an uncle or a mere stranger would be. Mortimore v. Wright, 6 M. & W. 486. The law was not settled so clearly at the time of Simpson v. Robertson, 1 Esp. 17, and Ford v. Fothergill, Id. 211, as it has been since. It is now well established that a father is not bound by the contract of his son, unless either an actual authority be proved, or circumstances appear from which such an authority may

be implied. Blackburn v. Mackey, 1 C. & P. 1; Fluck v. Tollemache, Id. 5, 11 Eng. Com. Law Rep. 295, 6; Rolfe v. Abbott, 6 C. & P. 286, 25 Eng. Com. Law Rep. 400. Notwithstanding what is said by the supreme court of New York, in Valkinburgh v. Watson &c. 13 Johns. 480, and by Chancellor Kent, in 3 Kent's Com. 191, and by Chancellor Walworth, in Ryder's case, 11 Paige 188, it may be regarded as now the rule in New York, as well as England, that without some contract, express or implied, a father is not liable even for necessaries supplied to his son. Raymond v. Loyl, 10 Barbour 483; Chilcott v. Trimble &c. 13 Id. 502. The rule is the same in Vermont. Varney v. Young, 11 Vermont 258; Gordon v. Potter, 17 Id. 348. If a son has purchased arti cles necessary for him, and suitable to that situation in which his father placed him, a jury may sometimes infer that the order was given by the assent and with the authority of the father. Baker v. Keen, 2 Stark. 501, 3 Eng. Com. Law Rep. 449; Law &c. v. Wilkin, 6 Adol. & El. 718, 33 Eng. Com. Law Rep. 193. But such inference should never be made when to make it would be inconsistent with the rule that the law does not authorize the son to bind his father by his contracts. A party who has contracted with the son, intending to trust to him for payment, cannot recover the debt from the father, when there is a total absence of authority in the son to contract on the part of the father. Shelton v. Springett, 11 Com. Bench (2 J. Scott) 452, 73 Eng. Com. Law Rep. 452, 20 Eng. Law & Eq. 281. If it be asked is then the son to be left to starve, the answer, says Maule, J., is, he must apply to the parish, and they will compel the father, if of ability, to pay for his son's support. People, he remarks, are very apt to imagine that a son stands in this respect upon the same footing as a wife. But that is not so. S. C.

In Virginia, there is besides the common law rule, a further provision made by statute 1838, p. 29, ch. 18, § 1; 1841, 2, p. 21, ch. 25. From these statutes was taken the following provision in the Code of 1849, p. 578, ch. 142, § 1:

If any money be lent or advanced, or any thing be sold or let to hire on credit, to or for the use of any student or pupil, under twentyone years of age, at the Virginia military institute, university of Virginia, or any incorporated college in this state, without the previous permission in writing of his parent or guardian, or the authorized offcers of such institution, nothing shall be recovered therefor, and there shall moreover be forfeited to the institution twenty dollars, and the amount or value of such money or other thing. Where such selling, letting, lending or advancing is by an agent, such forfeiture shall be by his principal, unless the principal shall, within ten days after he

has knowledge or information of the selling, letting, lending or advancing, give notice in writing of the date, nature and amount thereof to the president or other head of the institution, in which case the forfeiture shall be by the agent. This section shall not apply to a person selling or letting in expectation of immediate payment, if he shall within ten days thereafter give notice in writing of the date, nature, or amount of the sale or letting, to such president or other head.

11. Clearly no implied contract by father to pay for goods furnished or services rendered to child who has attained twenty-one.

The cases collected in the note to Wennall v. Adney, 3 Bos. & Pul. 249, cited ante, p. 309, sustain the conclusion that a promise by a father to pay the debt of a son of full age, not living with his father, though the debt were incurred by sickness, which ended in the son's death, cannot, without a previous request by the father, proved or presumed, be enforced by action. Mills v. Wyman, 3 Pick. 212; Loomis v. Newhall, 15 Pick. 163. But a father may come under an original and express liability for his son. Cook v. Long, 1 Car. & Marsh. 510, 41 Eng. Com. Law Rep. 510. If the father offer to make reasonable compensation for the board of his son, past and future, and this offer be accepted, the contract may be good, as well for what had been done before, as for what is done after, it is made. 15 Pick. 165, 6; Bret v. J. S. & wife, Cro. Eliz. 756; Colton v. Westcott, 1 Rol. 381.

CHAPTER XXXIII.

ACTION ON A CONTRACT FOR THE SALE OF LAND; OR THE BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED.

1. Where action is against vendor or vendee of an estate in fee or for years.

An action will lie against a vendee to recover the consideration money for land sold, Hoskins v. Wright, 1 H. & M. 377; Shepherd v. Little, 14 Johns. 210; Bowen v. Bell, 20 Id. 340; Wolfe v. Hauver, 1 Gill 93; or against a vendor to recover damages for the loss sustained by his non-performance of the contract. As early as the 9 Jac. 1, it was resolved that if one assume upon good consideration to make unto another VOL. II.-23

a good assurance of land, but perform it not, he is not obliged to file a bill in chancery for performance of the promise, but may have an action at law for breach of promise, and recover damages. Gollew v. Bacon, Bulstr. 112.

Whether the action be against vendor or vendee, it may be a question, 1, whether there existed a valid contract between them in relation to the land; and 2, whether there has been performance by the plaintiff, and non-performance by the defendant, of what was to be done on his part. Judson v. Wass, 11 Johns. 525; Van Eps v. Corpo. of Schenectady, 12 Id. 436.

On a sale of real property, although a good title be not stipu lated for by the agreement, the purchaser has generally a right to require it; it is a right not growing out of the agreement between the parties, but given by law. O'gilvie v. Foljambe, 3 Meriv. 53. The agreement, it is true, may use language shewing that the vendor intended to sell such a title as he had received, and nothing more. Wilmot v. Wilkinson, 9 Dow. & Ry. 620, 22 Eng. Com. Law Rep. 397. When it is contended that its true construction is that the purchase money is to be paid before the title can be ascertained, its terms should be so plain and express as to leave no doubt that such was the intention of the parties-that the purchaser contemplated parting with his money at the risk of being able to recover it back upon the vendor's failing to make out a good title. Wilde, C. J., in Porcher v. Gardner, 8 Man. Grang. & Scott 477; 65 Eng. Com. Law Rep. 477. Such being the rule on the sale of the fee, does a like rule hold on the sale of a lease? Is there in such case an implied undertaking by the vendor to make out a good title to the lease? Lord Tenterden thought not. George v. Pritchard, Ry. & Moo. 417, 21 Eng. Com. Law Rep. 478. But his decision is overruled. Souter v. Drake, 3 Nev. & Man. 40, 5 Barn. & Adol. 992, 27 Eng. Com. Law Rep. And it is now established, that on the sale of a lease there is an implied undertaking to make out the lessor's title to demise, as well as that of the vendor to the lease itself. S. C.; Hall v. Betty, 4 Man. & Grang. 411, 43 Eng. Com. Law Rep. 216.

Where a question arises between vendor and vendee, as to the meaning of a good or sufficient title, there must be such a title as the court of chancery would adopt as a sufficient ground for compelling specific performance; there must be not merely such a title as would support a verdict for the purchaser in an action of ejectment against a mere stranger, but such an one as would enable the purchaser to hold the property against any person who might probably challenge his

« PreviousContinue »