| New York Court of Chancery | Apr 20, 1830
The contract with the infant in this case was not void, but only voidable, at the election of the grantee when he became of age. He might then have relinquished the property to the grantor, and claimed back the money which had been paid at the time of the purchase. Willis v. Twambly, 13 Mass. 204" court="Mass." date_filed="1816-05-15" href="https://app.midpage.ai/document/willis-v-twambly-6404448?utm_source=webapp" opinion_id="6404448">13 Mass. R. 204.) But by continuing in possession after he became twenty one, and finally selling and conveying the land with warranty, he affirmed the contract. If an infant exchange lands, and after he becomes of age continues to occupy the lands taken in exchange, .he affirms the bargain and the exchange becomes perfect. (Co. Litt. 51 b. 2 Vern. 225.) In Kelley’s case, (I Brownl. R. 120,) where an infant took a lease of land, rendering rent, and continued in possession after he became of age, he was held personally • liable on the covenant for the payment of the rent. In this case, the deed and mortgage being given at the same time are to be construed together, as forming only one instrument or contract. (1 Paige’s R. 455.) The infant cannot avoid one part and affirm the other. If, when he came of age, he had elected to avoid the bond and mortgage, the deed also would have been avoided. By continuing in possession, and conveying the land, he affirmed the whole bargain, and made himself legally liable for the payment of the residue of the pur
The mortgage in this case is therefore a legal charge upon the land ; and there must be the usual decree directing a reference to complete the amount due, and for a sale of the premises on the usual notice on the confirmation of the master’s report. There must also be a decree over against Budd for the balance, if the premises do not sell for enough to pay the amount reported due, with the costs of this suit.