83 Ind. 243 | Ind. | 1882
This suit was brought by the appellee upon a promissory note, made to him by Perry Wilden and Margaret E. Wilden, his wife, and to foreclose a mortgage on certain real estate in Kosciusko county, in this State, executed by said makers to said payee, to secure said note.
Jacob B. Shrock and Charles Knorr, who are thé appellants, were made defendants with said 'mortgagors, it being alleged that, after the making and recording of the mortgage, the mortgagors had sold and conveyed said real estate to said Shrock, who was still the owner thereof, and that said Knorr was in possession thereof as tenant of said Shrock, under a lease for a term of years.
The mortgagors and the appellant Knorr appeared, and answered, that, at the time of the execution of the note and mortgage mentioned in the complaint, the defendant Perry Wilden was under the age of twenty-one years.
The appellee then dismissed the cause as to Perry Wilden and his wife, and thereupon Knorr withdrew his answer, and demurred to the complaint.
• It was then shown to the court that there was a mistake in the name of the appellant Shrock in the complaint, and, leave
To this answer the appellee demurred. The demurrer was sustained, and, an exception having been taken to this ruling, issues of fact were formed by further answer and reply. There was a trial before the court, which resulted in a finding for the appellee, and thereupon there was judgment of foreclosure.
The only error assigned is the ruling of the court sustaining the demurrer to said joint answer of the appellants.
Where a voidable contract of an infant' is disaffirmed by him, it is rendered void ab initio by relation, and the parties are thereby returned to the same condition as if the contract had never been made. Mustard v. Wohlford’s Heirs, 15 Grat. 329.
The privilege of disaffirming the voidable acts of an infant belongs to him for his own protection. During his lift* it is a purely personal privilege, and can not be exercised by others, though the exercise thereof by him maybe made available for the benefit of his privies in estate. Pitcher v. Laycock, 7 Ind. 398; Price v. Jennings, 62 Ind. 111.
Strictly speaking, the privilege is not assignable. There
“An infant may avoid his act, deed, or contract, by different means, according to the nature of the act, and the circumstances of the case. He may sometimes avoid it by matter in pais, as in case of a feoffment by an entry, if his entry is not tolled; sometimes by plea, as when he is sued upon his bond or other contract,” etc. Tucker v. Moreland, 10 Pet. 58.
The appellants, in their answer, did not rely upon the sale and conveyance to Shrock as a disaffirmance. If they had relied thereon solely, the answer should have shown such a transaction as would amount to a disaffirmance by the grantor of his prior mortgage, and then it would have been a good reply, that before such conveyance the grantor therein, after reaching his majority, had affirmed his mortgage made during minority.
The appellants sought to avail themselves of the avoidance of the mortgage by Wilden, by relying on his disaffirmance of his contract by plea. 'Wilden’s plea was a solemn disaffirmance in a court of justice, where it remained as a part of the record of this cause after the appellee, who had brought him into court, had dismissed the action as to him and his
. The answer of the appellants showed an act of Wilden which rendered the mortgage void ab initio, and which caused all the parties to the mortgage to revert to the same condition as if the mortgage had never been made, and, therefore, rendered the mortgagee incapable of maintaining an action thereon against Shrock and Knorr, unless, indeed, before the pleading of his said answer, Wilden, having arrived at full age, had affirmed the mortgage.
If the character or contents of the conveyance to Shrock, or any other act of the mortgagor after coming of age, had constituted an • affirmance of the mortgage, this would be proper matter for reply; and it was not necessary in this answer to show the character of the deed of conveyance to Shrock or the mode in which he derived his ownership, or in any other manner to show that Wilden, before filing his answer of infancy, had disaffirmed his mortgage or had not ratified it.
The judgment should be reversed.
Pee Cueiam. — Upon the foregoing opinion, the judgment is reversed, at the costs of the appellee, and the cause is remanded with instructions to overrule the demurrer to the first paragraph of the answer of the appellants, and for further proceedings.