This is a writ of error to the circuit court for the county of Washington, and District of Columbia.
The original action was an ejectment brought by the plaintiff in error against the defendant in error; and both parties claimed title under Richard N. Barry. At the trial of the cause upon the general issue, it was admitted, that Richard N. Barry, being seized in fee of the premises sued for, on the first day of December 1831, executed a deed thereof to Richard Wallach. The deed, after reciting that Barry and one Bing were indebted to Tucker and Thompson in the sum of three thousand two hundred and thirty-eight dollars, for which they had given their promissory note, payable in six months after date, to secure which the conveyance was to be made, conveyed the premises to Wallach, in trust to sell the same in case the debt should remain unpaid ten days after the first day of December then next. The same were accordingly sold by Wallach, for default of payment of the note, on the 23d of February 1833, and were bought at the sale by Tucker and Thompson, who received a deed of the same, on the 7th of March of the same year. It was admitted, that after the execution of the deed of Barry to Wallach, the former continued in possession of the premises until the 8th of February 1833, when he executed a deed, including the same and other parcels of land, to his mother, Eliza G. Moreland, the defendant, in consideration (as recited in the deed) of the sum of one thousand one hundred and thirty-eight dollars and sixty-one cents, which he owed his mother; for the recovery of which she had instituted a suit against him, and of other sums advanced him, a particular account of which had not been kept, and of the further sum of five dollars. At the time of the sale of Wallach, the defendant gave public notice of her title to the premises, and she publicly claimed the same as her absolute right. The defendant further gave evidence at the trial, to prove that at the time of the execution of the deed by Barry to Wallach, he, Barry, was an infant under twenty-one years of age; and at the time of the execution of the deed to the defendant, he was of the full age of twenty-one years.
Upon this state of the evidence, the counsel for the defendant prayed the court to instruct the jury, that if upon the whole evidence given as aforesaid to the jury, they should believe the facts to be as stated as aforesaid, then the deed from the said Wallach to the plaintiffs, did not convey to the plaintiffs any title, which would enable them to sustain the action. This instruction the court gave; and this constitutes the exception now relied on by the plaintiff in error in his first bill of exceptions.
Some criticism has been made upon the language, in which this instruction is couched. But, in substance, it raises the question, which has been so fully argued at the bar, as to the validity of the plaintiffs' title to recover; if Barry was an infant at the time of the execution of his deed to Wallach. If that deed was originally void, by reason of Barry's infancy, then the plaintiff, who must recover upon the strength of his own title, fails in that title. If, on the other hand, that deed was voidable only, and not void, and yet it has been avoided by the subsequent conveyance to the defendant by Barry; then the same conclusion follows. And these, accordingly, are the considerations, which are presented under the present instruction.