Wilson v. Darragh — 28 N.Y. St. Rep. 390

Majority

p. 390

Peter M. Wilson, Resp’t, v. Annie F. Darragh, Impleaded, App’lt.

(Supreme Court. General Term, Second Department,

Filed December 9, 1889.)

Headnote

Infancy—Ratification of mortgage.

Where an infant mortgagor, after coming of age, takes no steps to. dis-affirm the mortgage, hut procures releases of portions of the premises from the mortgagee, such conduct will be held to constitute a ratification of the mortgage.

Appeal from judgment of foreclosure and sale.

In 1881 defendant executed a mortgage to one Vernam to secure a bond given by Edward A. Darragh and herself. At that time she was an infant and did not become of age until 1883.

It appeared that prior to 1881 she had received, without consideration, a deed of considerable property, including these premises from Darragh.

To induce plaintiff to take an assignment of the mortgage defendant made an affidavit, in 1881, that there were no offsets. op

p. 391

equities existing against it, and that it was a valid security. In 1883, after coming of age, she procured releases of portions of the premises in order to complete sales thereof.

The court found that she had ratified and confirmed the mortgage and was estopped from attacking its validity.

James W. Covert, for app’lt; James M. Hunt, for resp’-t.

The evidence fully sustains the findings of fact, and upon those findings the conclusions of law are correct.

■ There was an utter failure to make out usury upon this loan,, and thus the only defense we need to consider is that of infancy.

■ Whether there was a ratification or not may well be inferred from all the circumstances of the case.

It is probable, although not specifically proved, that Annie Darragh held this property in trust to do with it whatever Edward Darragh requested. She. received it from him and paid no consideration therefor, and seems to have mortgaged and conveyed it upon his request. These circumstances throw light upon her conduct in regard, to the property.

We think no other conclusion could have been reached except that of ratification. Mrs. Darragh took no steps, after she arrived of age, to disaffirm the mortgage, and procured releases of portions of it from the mortgagee. Such conduct was utterly inconsistent with the claim that the mortgage was invalid, and was a distinct recognition of its validity.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.