20 S.W. 578 | Tex. Crim. App. | 1892
Defendant was convicted of disposing of mortgaged property, and sentenced to two years in the penitentiary, from which he appeals.
The defendant, a minor 17 years old, executed a mortgage to his landlord on his crop of 1891, to secure the balance of his indebtedness of 1890, and sold a bale of cotton without his consent. The only question in the case is, can a minor be held criminally responsible for disposing of mortgaged property? To hold one responsible for fraudulently disposing of mortgaged property, there must be a valid and subsisting mortgage enforceable at law. However solemnly executed a conveyance or mortgage of personal property may be by a minor, he may avoid it by sale or other act of disaffirmance. Mr. Jones, in his Chattel Mortgages (section 40), states the rule to be: "The mortgage of a minor is voidable, and can be avoided by him at any time during his minority, or in a reasonable time thereafter, and an unconditional sale of the property is an avoidance of the contract."
The law holds that infants are lacking in judgment and understanding sufficient to enable them to guard their own interests, and the law protects them against their own improvidence and the designs of others, by allowing them to avoid any act, contract, or conveyance not manifestly for their interest; and the general rule seems to be, no express contract, when repudiated or disaffirmed by the minor, can be enforced against him. Even in case of necessaries, the recovery is not on the express contract or contract price, but on an implied contract based on the actual value of the goods and the fact that they were necessaries. Schoul. Dom. Rel., sec. 411; Wood v. Losey,
Now, courts refuse to enforce a contract against a minor when disaffirmed *257 by him, and it is well settled he may repudiate any contract by refusal to pay, or by sale, and in other ways. If the statute prohibiting the sale of mortgaged property is to be construed as applying to him, then it strips him of the right to disaffirm the contract, the shield of protection given him by the common law, and places him helplessly in the grasp of his creditor, who under the threat of a criminal prosecution forbids the sale of his crop or the payment of its proceeds to himself. Such a contract can never be held for the benefit of the minor, and courts from the earliest times have refused to uphold contracts with penalties against minors. In the case of The State v. Howard, 88 North Carolina, 650, the court held that an indictment under a statute like ours forbidding the sale or disposal of a mortgaged crop, can not be sustained when it appears that the defendant is an infant. The alleged disposition was a disaffirmance of the contract, and rendered it void.
So in the case of The State v. Plaisted, 43 New Hampshire, 413, where a minor mortgaged a horse and sold it, the court held, that while an infant's mortgage on personal property was valid and binding until avoided, any act, as a sale of such property, showing his intentions not to be bound by said mortgage, is a sufficient avoidance of it.
We are of opinion that the sale of the bale of cotton violated no criminal statute, but on the contrary the act was simply a disaffirmance of the mortgage, and the special instruction given to the jury when they returned into court and asked instructions on this question was erroneous.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.
