Magee v. Welsh

18 Cal. 155 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

The main question in this case is, whether a mortgage executed in 1856, by a femme covert under the age of eighteen, can be enforced against her plea oí infancy, the mortgage having been made upon the separate estate of the femme.

The _Act of May 10th, 1854, (Wood’s Dig. 541) fixes the legal age of males at twenty-one and of females at eighteen, and provides that at those periods respectively they shall be competent to contract and to convey real estate. The Act of April 2d, 1858, (statutes, 108) provides that married women, when under the age of eighteen years, and married with the consent of their parent or guardian, shall be deemed of full and lawful age. It is true, that the Statute of Conveyances (Wood’s Big. 100, sec. 2) empowers husband and wife, by their joint deed, to convey real estate of the wife; but the act continues, “ in like manner as she might . do if unmarried.” Taking all these acts together, and it seems evident that the disability of infancy, as defined by the first act cited, attaches as well to femmes covert under age as to femmes sole, subject only to the Act of 1858, which has, however, no application to mortgages executed in 1856.

It is urged in avoidance of this plea that the deed of an infant is not void, but only voidable, and that it will be held valid unless disaffirmed on the infant’s arrival at legal age. But if this doctrine be generally true, it would not apply to such a case as this—the case, namely, of a married woman, whose disability of coverture might prevent, if not the possibility, by her own volition, of an act of disaffirmance, yet its effectual exercise ; and the principle would not, moreover, apply to the case of a note and mortgage, in respect to which there would seem to be no act of disaffirmance necessary until demand, of payment were made or enforcement were sought. It seems that the refusal to acknowledge the asserted obligation was made as soon as payment was insisted upon.

Nor if warranted by the record, is'the point better taken, that the mortgage and note are binding because-given to raise money to lift another mortgage upon the same property. This money so raised can scarcely be considered necessaries in contemplation of law, even if a mortgage executed to raise money for such a purpose be protected as a debit incurred for such a purpose.

Some other points are made, but we do not think it necessary to notice them.

Judgment affirmed.