
    Joseph J. Kane, Plaintiff, v. Patrick M. Kane, Jr., Respondent; Isaac H. Radford, Appellant, Impleaded with Others.
    
      Infant — mortgages executed by him — action to home them declared invalid — d tender of the money, when squandered in infancy, is unnecessary— tender of a deed in which the grantee’s name is left blank — burden of proof.
    
    One Kane, who had received, as consideration for'two mortgages executed by him while under twenty-one years of age, certain moneys and a conveyance of real estate, upon obtaining his majorit-y promptly served notice of his disaffirmance of the mortgages and tendered a reconveyance of the property conveyed to him, but having squandered, while he was an infant, the money which he had received, he did not offer to return it.
    
      Held, that the tender was sufficient;
    That if, in the deed tendered, the grantee’s name was in blank, th'e mortgagee would, on accepting it, have been authorized to insert the name; •
    That if the mortgagee asserted a subsequent ratification of the mortgages after the service of the infant’s notice of his election to disaffirm, the burden rested upon the mortgagee to establish that fact.
    Appeal by the defendant, Isaac H. Radford,'from a judgment of the County Court of Erie county, entered in the office of the clerk of the county of Erie on the 13th day .of February, 1896, upon the report of a referee.
    February .2,1894, this action was commenced in the County Court of Erie county to partition certain lands described in the complaint.
    The lands have been sold and a portion of the proceeds deposited with the treasurer of Erie county, awaiting the determination of the respective rights of .certain defendants in the moneys arising upon the sale. -
    
      On the thirteenth of March an order of reference was made which, among other things, authorized the referee to determine “ all the issues raised between, any of the co-defendants or between the plaintiff and any of the defendants.”
    Judgment was entered in accordance with the directions contained in the referee’s report, and the defendant Isaac H. Radford alone appeals from the judgment,
    ' Patrick M. Kane, Jr., was the owner of an undivided one-fourth part of the premises described .in the complaint. The appellant Radford claims a lien upon the share of Patrick M. Kane, Jr., by virtue of two mortgages, one executed on January 6,1894, for $250, and one executed on January 23, 1894, for $3,500.
    The answer of Patrick M. Kane, Jr., alleges that, at the time of the execution of the mortgages mentioned in the complaint and the bonds accompanying the same, “ he was under the age of twenty-one years, to wit, when he was only twenty years of age, and that said alleged bonds and mortgages are null and void by reason of the infancy of this defendant at the time of the execution and delivery thereof as aforesaid ; that promptly on attaining his majority the said defendant, Patrick M. Kane, Jr., by notice duly served upon the said defendant, Isaac II. Radford, disaffirmed said bonds, and mortgages.”
    The referee found as matter of fact: “ That the said defendant, Patrick M. Kane, Jr., has never since arriving of age, ratified, confirmed or affirmed either the $3,500 mortgage or the $250 mortgage made and delivered by him to the said defendant, Isaac H. Radford, and hereinabove more fully described.”
    He also found that the mortgagor “ disaffirmed ” the said mortgages promptly on arriving of age, and that he was a minor under twenty-one years of age at the time of the execution of the several mortgages.
    The referee also found : “ That before arriving of age the said defendant, Patrick M. Kane, Jr., spent and squandered all of the money that he had received of the defendant, Isaac H. Radford, under the agreement between them, made January, 1894, as herein-above set forth, retaining only the real estate that had.been conveyed to him by said defendant, Isaac H. Radford, under said contract. That ^ promply on arriving of age that said defendant, Patrick M. Kane, Jr., offered to reconvey to said defendant, Isaac H. Radford, all of the real estate that had heen 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.”
    
      Tracy C. Becker, for the appellant.
    
      Simon Fleischmann, for the respondent.
   Hardin, P. J.:

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 Decémber, 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 Game 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 the1 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 casé 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 arid 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.  