
    New York Building Loan Banking Company, Appellant, v. John H. Fisher, Jr., and Others, Respondents.
    
      Infancy—flic consideration of a mortgage given by an infant, expended on the land: —false representations as to age—restitution not compelled.
    
    A mortgage given by an infant upon premises owned by him is voidable at his election, even though the mortgagee has accepted it and advanced the money upon the faith of false and fraudulent representations made by the infant, as well as by his father, that he was of age.
    Where the moneys have been expended in filling in the mortgaged premises and in the payment of interest and insurance premiums which were charges thereon,, restitution cannot be compelled.
    Appeal by the plaintiff, the New York Building Loan Banking Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 3d day of June, 1897, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.
    
      William H. Hamilton, for the appellant.
    
      Andrew Blake, for the respondents.
   Patterson, J.:

This is ah action for the foreclosure of a mortgage. All the allegations of the complaint are appropriate to such an action only. The defendant John H. Fisher, Jr., was the mortgagor. He interposed, the defense of infancy and that defense was fully proven. The mortgage and the bond to which it was collateral were, therefore, voidable, at the election of the mortgagor, who disaffirmed them by interposing-the defense mentioned. The mortgage was given to raise money to enable the infant to construct á building • upon his land, but that fact does not aid the plaintiff. In Allen v. Lardner (78 Hun, 603) it was so decided. In that case, as in this, a mortgage was given by an infant as security for money borrowed, which was used in the erection of a dwelling house on the minor’s land. It was held that the mortgage was void on the ground of the infancy of the mortgagor. The general rule is not controverted; by the plaintiff, the appellant here, but it is in effect claimed that, by reason of fraud and misrepresentation on the. part of the infant and his "father, in the procurement of moneys and obligations from the plaintiff which constitute the consideration for the mortgage sought to be foreclosed, the court should ignore the defense of infancy and recognize and enforce the mortgage, or declare a lien in favor of the plaintiff on the premises at least to the extent of advances made by the plaintiff in good faith and in ignorance of the disability of the mortgagor. That there was fraud and deception in the dealings between the parties out of which this mortgage security arose seems to be established, but that does not furnish a reason for the judicial establishment of the validity of the mortgage in whole or in part. That either the infant or his father represented at the time the mortgage was made or prior thereto that such infant was of full age, does not affect this case. ' The infant is not estopped from insisting upon his defense, even though he himself falsely stated that he was over twenty-one years of age. In Studwell v. Shapter (54 N. Y. 249) the court considered the effect of false representations by ah infant as to his age and remarked that such representations would not make the infant liable on his contract; and in Heath v. Mahoney (7 Hun, 100) the court says : “ It is very clear that the agreement entered into between the parties was invalid by reason of the infancy of the defendant. An infant is, however, liable for his willful torts and for damages for frauds committed by him, but no fraudulent representation made by an infant can give validity to any contract entered into by him, which would otherwise be voidable for his infancy.- (Studwell v. Shapter, 54 N. Y. 249, and cases there cited.) The action must, in all cases, arise solely upon the tort or wrong committed by him.” In Kobbe v. Price (14 Hun, 55) the court refers to the case of Studwell v. Shapter, and states that in that case “ it was held that fraudulent representations made by an infant to induce another person to enter into a contract with him, would not give validity to the contract itself. In that case, as in this, the action' was brought upon tlie contract itself, and not for any fraud perpetrated by means of alleged false representations. -The evidence tended to show false representations, but the court held they were insufficient to charge the defendant with legal liability on the contracts, which the plaintiffs were, by those representations, induced to enter into with the infant.” The language last quoted is directly applicable to the case at bar. The text writers announce the same rule, Tyler on Infancy and Coverture (53, 57), where numerous authorities sustaining the proposition are cited.

Apart, therefore, from the consideration that, under this complaint as it is framed, there are no allegations to support an award of any other relief than that strictly applicable to the foreclosure of a valid mortgage, it seems to be settled, that the fraudulent representations of the minor, in relation to his age, would not be the basis of any other action than one upon the case for deceit.

It is also claimed that the infant should not be allowed to repudi- ■ ate his contract without making restitution of that which he has received under it. It is true that courts of equity have gone to a considerable extent in -the direction of compelling minors who seek to avoid their contracts on the ground of infancy, to make restitution of what they have received from those who were in ignorance of the disability at the time the contract was made; but in every one of these cases it was made to appear that the infant still retained in his possession,, or under his control, that which he had received, or some part of it. If he has disposed of, spent, or even squandered the money or other consideration . receivéd, his right to dis-affirm is not limited or affected. (Kane v. Kane, 13 App. Div. 544; Green v. Green, 69 N. Y. 553.) But it is to be observed in this case that no part of the consideration for this mortgage was paid to the infant himself, although moneys were expended for the bene■fit of his real estate upon which the mortgage was given. The sum •of' $1,422.19 was disbursed by the plaintiff on account of the-land. That sum consisted of an advance of $1,000 for the purpose of filling in sunken lots; $150.52 paid for fire insurance premium, and two other items paid for interest on two other mortgages on those lots, but none of this money was ever paid to the infant. There is no way by which those advances can be returned to the plaintiff through a foreclosure of the void mortgage. A similar question was presented in Allen v. Lardner (supra), and it was there held that upon disaffirming the bond and mortgage in that case no restitution by the infant was necessary of the moneys advanced on the mortgage, and which had gone into the improvement of the property covered by that mortgage.

The judgment of the court below was right and must be affirmed, with costs.

Van Brunt, R. J., Williams, O’Brien and Ingraham, JJ., ■concurred.

Judgment affirmed, with costs.  