10 N.H. 561 | Superior Court of New Hampshire | 1840
In this case, the defendant having received the deed from David Harvey when a minor, the conveyance to him is voidable on his arriving of age.
If at such time the defendant claims to hold the land, he affirms the deed from David Harvey to him; and if a mortgage back of the land was made at the time of the purchase, it being one and the same transaction, it affirms the mortgage, 1 N. H. Rep. 73, Roberts vs. Wiggin; 6 Greenl. R. 89, Dana vs. Coombs.
If, however, the conveyances were not one and the Same transaction ; if the defendant purchased the land of Harvey, and paid a consideration for it, so that the contract for the land was complete and ended, and by a snbsequent transaction the defendant mortgaged the land, an affirmance of the original deed would be no affirmance of the mortgage, The
It may, therefore, become important to determine how this was, and whether the sale and mortgage was one and the same transaction. Such appears to have been the fact, from the case as drawn; but it is suggested that this point: was not adverted to at the trial, and that the case may be incorrect in this respect. If so, it can be corrected hereafter.
If this was a conveyance of land, and an immediate mortgage back, then the only cprestion to be determined, to settle finally the rights of the parties, is, whether the purchase of the land was affirmed by the defendant after arriving of age ; as this affirmance would affirm the mortgage, and entitle the plaintiff, as assignee of the mortgage, to recover the possession.
It is necessary, then, to consider the testimony in the case, relative to an affirmance of the contract.
On this point there is much diversity of authority. But this diversity arises, in a considerable degree, from the different classes of contracts to which affirmance relates, and from the different rules of law applicable to each. The authorities relating to different classes of contracts should he kept distinct from each other, as far as may he; and it will then be found that those applicable to any one branch do not essentially differ.
It is holden, as to promissory notes, that if an infant, after coming of age, admits that he owes the debt, or makes part payment of it, it is not a sufficient ratification of the contract ; but there must be an express ratification, to render it
Payment of part of a note is no ratification of the whole, because the infant may admit only an indebtedness to that extent. The ratification should be equivalent to a new contract. Therefore an express promise as to the whole debt is necessary. 3 Wend. R. 479, Goodsell vs. Myers.
There are numerous authorities to this effect ; but these are cases where notes were given for articles which had been used or consumed prior to the infant’s becoming of age. Where the matter constituting the consideration of the note is not in existence when the infant becomes of age, or is wholly beyond his control, there is nothing upon which an implied promise can arise, and an express promise to pay the debt can alone render the infant liable. The authorities are, therefore, correct, as limited to this class of cases. But where the consideration of the note is still in existence, in as perfect a state after the infant becomes of' age as before, and is subject to his control, he may so deal with the articles or property forming such consideration, as to raise an implied promise of payment; and in such cases an implied promise to pay the note renders the infant liable, as fully as any express promise could have done.
Thus, where an infant had purchased a yoke of oxen, for which he gave his negotiable promissory note, and after coming of age sold the oxen and received the avails, this was held as an implied promise to pay the note. 7 Greenl. R. 405, Lawson vs. Lovejoy. Acts of this description, as to the property for which the note was given, constitute a full ratification of the contract.
Where but a part of the articles are in possession of the minor when he becomes of age, his detention or conversion of them might not affirm the entire note ; but there can be little doubt it would render him liable in some form to the extent of the value of such articles.
Some authorities confine an affirmance of a purchase of land to an actual subsequent sale of the same by the infant, after he becomes of age ; but it seems to be limiting to a very narrow point the evidence of affirmance of such a contract, and without any sufficient reason ; as many other acts may constitute just as full and undoubted evidence of a design on the part of the infant to affirm such contract, as an actual sale of the land. We think the better authority to be that sustained by the case of Hubbard & al. vs. Cummings, 1 Greenl. R. 11, that if the grantee, being an infant, continue in possession of the land after becoming of full age, this is an affirmance of the contract. Co. Litt. 2, b; Com. Dig., Enfant, C. 6, 8; 1 Pick. 221, Barnaby vs. Barnaby.
In this case it appears that the defendant became of age in September, 1834. In the summer of 1838 — four years af-terwards — the defendant and his father occupied and improved the demanded premises, purchased by him when an infant, and during said summer the defendant offered to sell the land to one William Kenney. We consider this evidence sufficient to show an affirmance of the original contract of purchase, and the plaintiff is, therefore, entitled to judgment.
The pleading of nul disseizin, independent of this evidence, shows a claim of title to the land, and an affirmance of the contract.
Judgment on the verdict.
