Opinion
January Term, 1897.
Tracy C. Becker, for the appellant.
Simon Fleischmann, for the respondent.
In Palmer v. Miller (25 Barb. 399) it was held that a mortgage executed by an infant is valid until some act is done by him to avoid it.
Upon the hearing before the referee it was clearly shown that Patrick was born on the 1st day of December, 1873, and arrived at his majority on the 1st day of December, 1894. It was thus made to appear that, at the time of the execution of the two mortgages held by the appellant, he was under age. It was also made clear by the evidence that very soon after coming of age he elected to disaffirm the mortgages, and gave notice thereof to the appellant. After such proof was given the appellant took upon himself the burden of establishing a ratification of the mortgages subsequent to the time when Patrick became of age.
In Henry v. Root ( 33 N.Y. 526) it was said that the burden rests upon the party who seeks to establish a ratification after the infant so executing an instrument attains his majority. The same doctrine is announced in Walsh v. Powers ( 43 N.Y. 23).
In endeavoring to bear the burden of establishing the allegation of ratification, the appellant was sworn as a witness, and he called in support of his theory of the case two other witnesses, and insisted before the referee that there had been a promise, a ratification and an approval of the mortgages. To meet that issue the defendant was sworn as a witness and contradicted the testimony, to a large extent, delivered by the appellant. Upon the conflicting evidence presented to the referee he has made a finding of fact adverse to the appellant. The referee saw the witnesses, their demeanor upon the hearing, and brought to mind all the circumstances attending the supposed ratification, and resolved the conflict in the evidence adverse to the appellant. It was within the prerogative of the referee to determine which of the witnesses he would give credit to. The appellant was interested as a party and his evidence was open to criticism, cavil and doubt, and the referee seems to have discredited the statements made by the appellant, as a witness, and to have disbelieved the witnesses who were called to support his theory of the case, and a perusal of the evidence found in the appeal book leaves upon our mind the impression that the referee was warranted in reaching that conclusion upon the controverted question of fact.
In Sackett v. Thomas ( 4 App. Div. 448) we had occasion to deal with a somewhat similar conflict, and to quote authorities bearing upon the right of a referee to determine which of the witnesses testified to the truth, and to quote the authorities bearing upon the rule applicable to a review of a determination made by a referee under such circumstances. In that case we said, after quoting the authorities: "As to some of the essential questions involved in the controversy there was a conflict in the evidence, and it was for the referee to determine that conflict and to apply the evidence in connection with the solution made by him of the conflicting evidence. We think his conclusions of fact should be sustained."
We are not able to yield to the contention of the learned counsel for the appellant, that the finding of the referee is "clearly against the law and the weight of the evidence."
According to the finding of the referee Patrick had "spent and squandered all of the money that he had received of the defendant, Isaac H. Radford," before arriving at full age, and, according to the doctrine laid down in Green v. Green ( 69 N.Y. 553) under such circumstances, he was authorized to disaffirm the mortgages without returning the money.
In Dill v. Bowen (decided by the Supreme Court of Indiana in 1877, reported in 15 Alb. L.J. 452) it was said: "She had a right to disaffirm the deed and recover the land back without returning or offering to return the purchase money. ( 45 Ind. 142.) Therefore, she was guilty of no tort or legal wrong in disaffirming without restoring the purchase money. Having disaffirmed, the law imposes upon her no legal obligation to repay the money. * * * But, if the property has passed from his hands, the law imposes no obligation upon him to account."
In Beardsley v. Hotchkiss ( 96 N.Y. 201) it was said: "The defense of infancy is for the benefit and protection of the infant." We find nothing in that case inconsistent with the principle which we have already adverted to.
In Hodges v. Hunt (22 Barb. 150) the question of a ratification was involved, and it was said: "A new promise made by him (an infant), after he becomes of full age, must possess all the ingredients of a complete agreement, to enable the creditor to recover."
In Mordecai v. Pearl (63 Hun, 553) it was said that, after the orders had been "effectually repudiated on the ground of infancy, they must be regarded, so far as they affect his legal rights, as though they never had any existence."
This case differs from Kincaid v. Kincaid (85 Hun, 141), as that was a case where an infant bargained for property, and, on coming of age, received and used it and sought to repudiate the obligation to pay for it.
The case in hand differs from Palmer v. Miller (25 Barb. 399), as in that case, after the infant arrived at majority, there was a fresh acknowledgment of the mortgage, which was held to be a ratification of the same.
In Walsh v. Powers ( 43 N.Y. 23) the defense of infancy prevailed because there was no finding of any act sufficient to work a ratification after the party came of age. We see nothing in the case that aids the contention of the appellant here.
In the case before us, the referee has found that the infant promptly, on arriving of age, offered to reconvey to the appellant "all of the real estate that had been conveyed to him by said defendant, Isaac H. Radford, or by said Mrs. Stevens, under said agreement between them, and tendered a sufficient deed and reconveyance thereof, both by actual deed and in his answer herein, which reconveyance the said defendant, Isaac H. Radford, refused to accept."
If he had accepted the deed, although the grantee's name was in blank, he would have been authorized to have inserted the name. We think the tender was sufficient. ( Berry v. A.C. Ins. Co., 132 N.Y. 49; Zebley v. F.L. T. Co., 139 id. 461.)
The learned referee has quite satisfactorily discussed the facts in an opinion delivered in conjunction with his report. We are of the opinion that his report should be sustained.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.