Flynn v. Powers

By the Court,

It is now established that the contracts of an infant are voidable only, and not void, and are subsisting liabilities, requiring, however, ratification after such infant becomes twenty-one, to be enforced. (Henry v. Root, 33 N. Y. Rep. 526.) The defendant, while an infant, took a conveyance from Edward A. "Walsh, of certain lands in Hew "York, on.which there was, at the, time of the conveyance by Walsh to her, a mortgage given by Walsh to Samuel Whitehead. This mortgage was deducted from the purchase price of the land, and the defendant, as part pf the price, ■ agreed to pay Whitehead the amount thereof. Subsequently, and" while still under age, the defendant conveyed the premises, at a considerably advanced price, to John Brouwer, deducted the same mortgage from the consideration, and Brouwer, in like manner as she had done, agreed to pay such mortgage. The mortgage was not paid, and White*555head foreclosed. Walsh, the defendant, and Brouwer were defendants in the foreclosure suit. The defendant was then of full age. She appeared by attorney, but put in no answer. Judgment was entered in the foreclosure suit as if she had been an adult during the whole transaction. She might have spoken; she was silent, and permitted the rights of the parties to be passed upon and determined as if she was a person capable of conveying and receiving a conveyance. If there had been a surplus upon the foreclosure sale, the defendant’s grantee would have been entitled to it.

If she then had repudiated her purchase from Walsh, and her sale to Brouwer, all the parties were before the court, and Walsh could have been protected. By her suffering the foreclosure complaint to be taken as confessed by her, she determined that the act done by her'in infancy should stand. She and Brouwer were made defendants, as grantees subsequently to Whitehead’s mortgage.

It is too late, after she takes her chance for the surplus, or permits her grantee to have a right to the surplus, as if the conveyances were good, to set up this defense of infancy to escape the payment of a deficiency.

The judgment should be affirmed, with costs.

(dissenting.) The learned judge who tried this action without a jury has found, as a fact, that the defendant was an infant at the time she received the deed containing the assumption and agreement on her part to pay the amount secured by the mortgage in question, "and that she had not attained full age at the time of the conveyance subsequently executed and delivered by her to John Brouwer, of the property covered by the mortgage, and referred to in his findings of fact. Consequently that conveyance cannot operate as an affirmance or satisfaction of the original assumption and agreement; and I do not find any promise, declaration or acts by her after *556she became of- full age, by which she agreed to ratify that contract, or which in any manner import a recognition or confirmation of it. The naked fact, found by the judge, that she was made a party to the action for the foreclosure of the mortgage, and appeared therein by her attorney; that a sale was had under the judgment therein, for a price insufficient to pay the amount due thereon; and that the plaintiff’s assignor subsequently paid the deficiency' or balance that remained due, in pursuance of the direction and requirement of that judgment, is not sufficient. It does not appear that any answer was put in for her, or that any act whatever, except such appearance, was done by her or her attorney, in that action. Nor is it found that the fact of such assumption or agreement was alleged in the complaint; and as the liability of her grantor to satisfy and discharge the deficiency arose out of his personal obligation to pay the mortgage, there was no necessity of setting out any of the contents of the deed made' by him to her, and it will not be assumed that they were. There was therefore not even an admission by the defendant, assuming that she suffered judgment to pass by default, of the execution and delivery of that deed to her.

Under such circumstances, the defendant was not legally liable on her promise.

The judgment against her should therefore be reversed, and a new trial ordered; costs to abide the event.

Judgment affirmed.

Lott, J. F. Barnard, Gilbert and Tappen, Justices.]