Merchants Fire Insurance v. Grant — 2 Edw. Ch. 544

Majority

p. 544

Merchants Fire Insurance Company v. Grant and others.

Novemb. 17, 1835.

Headnote

An infant’s deed being voidable tonIy and capable of confirmation, may become confirmed where such infant, after age, makes his will and directs all his just debts tobe satisfied.

G., an infant, obtained money on mortgage of real estate. He died, Laving, when of age, made Ills will and therein directedlm all his just dtbts and funeral expenses to be first paid and satisfied.” He also devised the pioperty (without referring to the mortgage) to his mother in fee. The mortgagees filed a bill of foreclosure; when the infancy was set up: but the court decreed in favor of the mortgage, with costs*

Bill of foreclosure, under the following circumstances : jn month 0f February, one thousand eight hundred and twenty, the complainants advanced to Ebenezer Turret Grant three thousand two hundred dollars ; and took from him a bond and mortgage of land in the city of New-York, alleged to belong to him in fee simple. The loan was negotiated through Messrs. Shotwell and Son, who, as the bill alleged, were the brokers of the borrower, whereas the de

p. 545

fendants insisted that they acted for the company. It ultimately turned out that the mortgagor, Edward Turrell Grant, was under age at the time he executed the bond and mortgage. While the securities were outstanding, he died; having first made his will, which commenced with a direction as to his debts, as follows : “ Imprimis, I order and direct all my just debts and funeral expenses to be first paid and satisfiedand the property which he had mortgaged was given to his mother, in the words following : “ Also, I give and devise to the said Elizabeth Grant and to her heirs and assigns for ever my two houses and lots of land known by Nos. 205 and 207, in William Street in the city of New-York, with the appurtenances.” He appointed the defendants Elizabeth Grant and Richard Grant his executrix and executor.

The defendants, in their answer, set up the infancy of the mortgagor at the time of giving the bond and mortgage, and alleged usury in the granting of the loan.

Mr. John L. Lawrence, for the complainants.

Mr. Jacob Radcliff, for the defendants.

I consider it the settled law of this state that the deed of an infant is voidable only, at his election when he comes of age or at the election of his heir or representative, and not [^absolutely void. It is, therefore, capable of confirmation ; and the mortgagor Edward Turrell Grant, having made a will after he attained the age of twenty-one • years, in which he orders and directs all his just debts, as well as funeral expenses, to be first paid, is so far from evincing on his part a disposition to avoid the debt contracted with the complainants and secured by his bond and mortgage, that I think it may well be understood as $ confirmatory of it. The court may infer from the will that,, such was his intention and that his object was to leave the whole of his estate, real and personal, to his mother, subject to the payment of the mortgage debt. She could have no right, therefore, to object to the payment out of the proper

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ty: for it is left to her after the debts are paid. The court is justified, by the facts in this case and the circumstances , , . , , , , . , - , , . under which the loan was obtained from the complainants, in laying hold of any equitable construction which can possiblv be given to the. will and to hold it to be a confirmation, instead of an avoidance of the bond and mortgage. For ^ 0 ° this we have a precedent in Hampson v. Sydenham, Nelson’s Ch. Rep. 55.

As to the defendant Richard Grant, the father of the mortgagor and who has now a life estate in the mortgaged premises as tenant by the curtesy: upon- every principle of justice and equity, he ought not to be permitted to set up the objection of his son’s non-age. The father was privy to the whole transaction ; was instrumental in procuring the loan from the complainants ; and was present when the money was advanced and the papers executed—and, according to the testimony, received a part of the amount. He knew the fact, if it be so, that his son whs not then of age and it was his duty to have apprised the complainants that they were dealing with an infant or for ever after to have held his peace on the subject. To permit him now to set up the objection, is to sanction his perpetration of a fraud. With the oppressive nature of the exactions of the broker employed by the father and son, if there were any oppression in the matter, the complainants had.no concern. The broker was not employed by them, n,or was he their agent.

(There must be a decree establishing the validity of the bond and mortgage ; and referring it to a master to compute the amount. Upon the coming in and confirmation of the report, let the property be sold in the usual manner to satisfy the complainants their debt and costs.