
    Mary Flynn vs. Millie D. Powers.
    The contracts of an infant are voidable only, and not void. They are subsisting liabilities, requiring, however, ratification after the infant becomes twentyrone, in order to be enforced.
    An infant took a conveyance of land on which there was a subsisting mortgage, which she assumed and agreed to pay, as a part of the purchase money. Subsequently, while still an infant, she sold the land to a third person, who agreed to pay the mortgage. After .she became of age, the mortgage was foreclosed, and she being made a party to the foreclosure suit, appeared by attorney, but put in no answer, and judgment was entered against her, as if she had been an adult. Field that, having been silent when she might have spoken, and having suffered the complaint in the foreclosure ■ suit to be taken as confessed against her, the defendant determined that the act done by her in infancy should stand; and that after having taken her chance for a surplus, to herself or her grantee, as if the conveyances were good, it was too late for her to set up the defense of infancy, to escape the payment of a deficiency.
    APPEAL from a judgment entered at a special term, on a trial by the court without a jury. The 'action was brought to recover the amount of a deficiency arising from a foreclosure- sale.
    On the 20th of February, 1855, E. A. Walsh, being the owner of a lot of land in the city of Hew York, gave a mortgage thereon, accompanied by a bond, to one Whitehead, to secure the payment of' $3596. On the 20th of June, 1856, Walsh conveyed the property to the defendant, for the consideration of $9300, the grantee in such deed assuming and agreeing to pay the mortgage. At the time she took this conveyance from Walsh, the defendant was only nineteen or twenty years of age. On the 21st of January, 1857, before she became of age, the defendant conveyed the land to one Brouwer for $12,000. Brouwer also agreed to pay such mortgage. On the 7th of June, 1860, Whitehead commenced an action in the Supreme Court to foreclose the mortgage, and made the defendant a party, by serving her with a summons and complaint and notice of the suit. She appeared in that action, by her attorney, but did not answer, and a judgment of foreclosure was entered July 20, 1860. The property was sold, under said judgment, and on the 10th of September, 1860, a judgment was entered against Walsh, the mortgagor, for the deficiency, $1504.04. In December, 1866, Walsh paid that judgment, and' assigned his claim against the defendant to the plaintiff in this action.
    During all these transactions the defendant was, and still is, a married woman. She is now the owner of several pieces of real estate, in her own right, and has a separate estate.
    The cause was tried by the court without a jury, and a judgment rendered for the plaintiff, against the defendant, charging her separate estate with the amount of the judgment given for the deficiency.
    The following opinion was rendered by the justice at special term:
    Tapp as, J. “ The later decisions of the Court of Appeals appear to meet and govern the first question, in this case. They will be found in Owen v. Cawley, (36 N. Y. Rep. 600,) and in Ballin et al., ex’rs, v. Dillaye, (35 How. Pr. 216.) In the latter case, quoting the chancellor in Gard
      
      ner v. Gardner, (7 Paige, 112,) the court says: “ The wife may have a separate estate of her own, which estate is chargeable in equity for any debt she may contract on the credit or for the use of such estatealso citing North American Coal Co. v. Dyett, (Id. 9;) Yale v. Dederer, (18 N. Y. Rep. 265;) and White v. McNett, (33 id. 371.)
    In the case under consideration, the defendant had a separate estate. The obligation which she took upon herself was for the benefit of her separate estate; and indeed in this case that obligation enabled her to acquire a separate estate; for how can it be said that a debt contracted upon the purchase of property which a purchaser takes into possession and enjoys, and disposes of at an apparent profit, is not a debt contracted for the benefit of the purchaser’s estate. Her separate estate, as a whole, becomes liable for any indebtedness contracted by her for its benefit, to any extent. A lien does not exist for her engagements at large, but may be deduced from an express or implied agreement to that effect, on her part, or from some equivalent obligation resulting from her act by operation of law.
    In this case, Mrs. Powers, the defendant, in conveying the premises to Brouwer, made the conveyance subject to the two existing mortgages, the payment of which Brouwer assumed as a part of the consideration money, and Mrs. Powers has therefore a right of action against him, or his representatives, to make good the deficiency in'question.
    As to the question of infancy, I will just state the dates of the several transactions.
    The conveyance to the defendant is dated June 20,1856, acknowledged August 5, 1856, recorded October 23,1856. The conveyance by the defendant to John Brouwer is dated January 21,1857, acknowledged March 21, 1857, recorded April 2, 1857. In June, 1860, the defendant herein was personally served, with a summons and notice of the object of the action, and appeared by attorney, in the foreclosure suit. A sale was had therein, August 14,1860, and a judgment against Walsh, for the deficiency, docketed September 8,1860, for $1504, and on the 19th of December, 1866, this deficiency appears to have been settled by the plaintiff in this action, for and on account of Walsh, who, on that day, assigned to the plaintiff herein his claim against the defendant herein.
    I do not consider the proof conclusive as to the defendant’s infancy. The witness on that point is the defendant’s mother. She says; “ I think the defendant was born in 1837, and I have always kept her birth day 31st March. I had a record, but it was destroyed by fire, when I was burnt "out, a year or two after my husband’s death. He has been dead twenty-five or twenty-six years; Millie (the defendant) was my fourth child; she was sixteen years of age, entering her seventeenth year, when married, which was January 18; but don’t recollect the year. I had five children. The second child was born in 1832, in the cholera season; that is what makes me recollect.” I have, with some doubt, however, given the defendant the benefit of a finding that she was not of the age of twenty-one years.
    But this question of fact is not so important if we refer to the subsequent acts of the defendant in conveying the premises with warranty of title, and taking the purchaser’s covenant to assume the mortgage, and to save the defendant harmless; also the appearance of the defendant by attorney, in the foreclosure suit, after being personally served with the summons and notice of the object of the action, and no question of infancy being raised. In all this there i& sufficient proof of affirmance. Moreover, there should be a restitution by the defendant, of the consideration received, in order to avoid the liability entailed by the contract. The estate, and the proceeds thereof, cannot be retained-without performance of the obligation sought to be enforced. This is the uniform rule. (Henry 
      v. Root, 33 N. Y. Rep. 531, and cases cited. Lynde v. Budd, 2 Paige, 191. Kitchen v. Lee, 11 id. 107.)
    Judgment should be entered for the plaintiff, according to the prayer of the complaint.”
    Judgment being entered accordingly, the defendant appealed.
    
      Ira D. Warren, for the appellant,
    insisted that the plaintiff was-not entitled to recover, on the following grounds:
    
      First. Because, at the time of this transaction, the defendant was a married woman.
    
      Second. Because, at the time she took her deed and-entered into the covenant to pay the mortgage upon the premises conveyed, and at the time she sold the property, the defendant was an infant under the age of twenty-one years.
    
      A. Parsons, for the respondent.
   By the Court,

J. F. Barnard, J.

It is now established that the contracts of an infant are voidable only, and not void, and are subsisting liabilities, requiring, however, ratification after such infant becomes twenty-one, to be enforced. (Henry v. Root, 33 N. Y. Rep. 526.) The defendant, while an infant, took a conveyance from Edward A. "Walsh, of certain lands in Hew "York, on.which there was, at the, time of the conveyance by Walsh to her, a mortgage given by Walsh to Samuel Whitehead. This mortgage was deducted from the purchase price of the land, and the defendant, as part pf the price, ■ agreed to pay Whitehead the amount thereof. Subsequently, and" while still under age, the defendant conveyed the premises, at a considerably advanced price, to John Brouwer, deducted the same mortgage from the consideration, and Brouwer, in like manner as she had done, agreed to pay such mortgage. The mortgage was not paid, and Whitehead foreclosed. Walsh, the defendant, and Brouwer were defendants in the foreclosure suit. The defendant was then of full age. She appeared by attorney, but put in no answer. Judgment was entered in the foreclosure suit as if she had been an adult during the whole transaction. She might have spoken; she was silent, and permitted the rights of the parties to be passed upon and determined as if she was a person capable of conveying and receiving a conveyance. If there had been a surplus upon the foreclosure sale, the defendant’s grantee would have been entitled to it.

If she then had repudiated her purchase from Walsh, and her sale to Brouwer, all the parties were before the court, and Walsh could have been protected. By her suffering the foreclosure complaint to be taken as confessed by her, she determined that the act done by her'in infancy should stand. She and Brouwer were made defendants, as grantees subsequently to Whitehead’s mortgage.

It is too late, after she takes her chance for the surplus, or permits her grantee to have a right to the surplus, as if the conveyances were good, to set up this defense of infancy to escape the payment of a deficiency.

The judgment should be affirmed, with costs.

Lott, P. J.,

(dissenting.) The learned judge who tried this action without a jury has found, as a fact, that the defendant was an infant at the time she received the deed containing the assumption and agreement on her part to pay the amount secured by the mortgage in question, "and that she had not attained full age at the time of the conveyance subsequently executed and delivered by her to John Brouwer, of the property covered by the mortgage, and referred to in his findings of fact. Consequently that conveyance cannot operate as an affirmance or satisfaction of the original assumption and agreement; and I do not find any promise, declaration or acts by her after she became of- full age, by which she agreed to ratify that contract, or which in any manner import a recognition or confirmation of it. The naked fact, found by the judge, that she was made a party to the action for the foreclosure of the mortgage, and appeared therein by her attorney; that a sale was had under the judgment therein, for a price insufficient to pay the amount due thereon; and that the plaintiff’s assignor subsequently paid the deficiency' or balance that remained due, in pursuance of the direction and requirement of that judgment, is not sufficient. It does not appear that any answer was put in for her, or that any act whatever, except such appearance, was done by her or her attorney, in that action. Nor is it found that the fact of such assumption or agreement was alleged in the complaint; and as the liability of her grantor to satisfy and discharge the deficiency arose out of his personal obligation to pay the mortgage, there was no necessity of setting out any of the contents of the deed made' by him to her, and it will not be assumed that they were. There was therefore not even an admission by the defendant, assuming that she suffered judgment to pass by default, of the execution and delivery of that deed to her.

[King’s General Term,

December 14, 1868.

Under such circumstances, the defendant was not legally liable on her promise.

The judgment against her should therefore be reversed, and a new trial ordered; costs to abide the event.

Judgment affirmed.

Lott, J. F. Barnard, Gilbert and Tappen, Justices.]  