49 N.Y. 407 | NY | 1872
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *410 One George Chapin, an infant, being indebted to the defendants for the balance of an account for three suits of clothes, one for himself and two for others, gave them a chattel mortgage upon a horse, to be void in case he paid $110 in ninety days from the 20th of January, 1868. On the same day he sold the horse to this plaintiff and delivered it to her. He refused to deliver the horse on the mortgage to the defendants. When the mortgage was due, the defendants took the horse from plaintiff's possession, and she brought this action therefor. In August thereafter, directly after George Chapin became of age, he ratified the bill of sale to plaintiff by writing indorsed thereon.
It appeared in the evidence that Chapin was induced to give this mortgage by threats of being arrested for obtaining goods by false pretences; so testified by him, affirmed by defendants' agent who made the threats by their authority, and not in substance denied by them. The referee found the other way upon this question, and if it be without any evidence to support it, still there is no affirmative finding of duress, nor any request so to find. In such case we cannot review the point. *412
What right did defendants acquire by this mortgage as against the mortgagor? The horse mortgaged was not delivered to the defendants, but retained by the mortgagor. To this extent this sale by way of mortgage was not executed.
The actual possession remained in the mortgagor. In such case the mortgage is made prima facie void by our statute, as against subsequent creditors, etc. (2 R.S., 136, § 5.)
The mortgagor here being an infant, we have the authority ofStafford v. Roof (9 Cow., 626) that the mortgagees, in such case (no possession having been delivered), would be trespassers in taking possession of the horse.
By another rule of the common law it is declared that where the contract or instrument is to the disadvantage of the infant, it is void; that no contracts of infants are void except those in which it would be better for the infant as a general principle that they should be so held. (Zouch v. Parsons, 3 Burr., 1805; Breckenridge v. Ormsby, 1 J.J. Mar., 236; Keane v.Baycott, 2 H. Blacks., 511; 2 Kent, Johnst. ed., 236.)
It is difficult to see how, as a general principle, it can be advantageous to an infant to give a mortgage upon personal property at a short date to secure an old debt, which as a general rule puts a mortgagor in embarrassed circumstances quite in the power of the mortgagee, certainly in most cases to sacrifice the property at a forced sale. Giving a mortgage to secure the purchase money of property, is a different thing. The end of the rule is the protection of the infant. (See last cases.)
But I do not rest the case upon this ground, as the tendency of modern authorities is to make nearly all deeds or contracts of infants not void, but voidable.
Assuming that the mortgage is voidable only, then the mortgagor had a right to avoid it at any time before he arrived at age, and within a reasonable time thereafter, by any act which evinced that purpose (Bool v. Mix, 17 Wend., 119; Stafford v.Roof, supra; State v. Plaisted,
I think the sale to this plaintiff on the same day the mortgage was executed, and the delivery of the horse to her, was such a sale.
True, the terms of the sale were all the vendor's "right, title and interest" in the property, but afterwards came a covenant "to warrant and defend the sale of said goods and chattels, herebymade unto the said Eliza, against all and every person whomsoever."
The bill of sale embraced many other chattels of the vendor, and these words therein were obviously intended to convey the chattels absolutely. Taking the whole instrument together, it was an unconditional sale with warranty. Such is its manifest purpose. The covenant of warranty so in substance speaks. The cases referred to by the appellants' counsel are all cases of real estate, where the rules of construction are different. In sales of personal property, warranty of title is always implied; not so as to real estate.
The mortgage is thus absolutely avoided.
Again, the ratification of the bill of sale after the infant's arrival at age was for a like purpose, treating it as a "bill of sale and assignment" of the property. The purpose to ratify this and to rescind the other is plain; no particular form of words was necessary. This avoided the mortgage. It was thus made void. The defendants' authority for taking the horse was gone. The defence was thereby struck out. I incline to think this operated to make the defendants trespassers from the beginning in taking the horse. Their title was never perfected. Before it ripened, it was extinguished by this dissent.
The order should be affirmed and judgment absolute for plaintiff.
All concur except FOLGER, J., not voting.
Judgment accordingly. *414
