Opinion
(September Term, 1892.)
Deed — Mortgage — Infancy — Ratification — Lien, Priority of.
An infant executed a mortgage of land, and after arriving at majority executed another mortgage of the same land to another mortgagee; in the last mortgage, immediately following the descriptive clause, was this recital: "Which said tract is subject to a prior lien in favor of J. B.," the first mortgagee: Held, that this recital was a ratification of the first mortgage, and thereby constituted it a first lien upon the land conveyed.
ACTION tried at March Term, 1892, of HALIFAX, by Brown, J.
(116) Mullen Daniel and S. S. Alsop for plaintiff.
R. O. Burton and L. P. McGehee for defendants.
The question presented by this appeal is whether the mortgage deeds executed by an infant, and purporting to convey land to John Beavans to secure two notes, one for $150, the other for $50, were ratified by a recital in reference to the same land in a second (117) conveyance of it to secure debts made after his arrival at the age of twenty-one, and in the following words inserted immediately after the description, to wit, "Which said tract is subject to a prior lien in favor of John Beavans, Sr., for the sum of $200," it being admitted that no other mortgage deeds were ever executed by the infant to said Beavans.
In McCormic v. Leggett, 53 N.C. 427, Chief Justice Pearson stated the rule governing the ratification of the voidable contracts of infants after attaining their majority to be "that the deed of an infant is not void, but is voidable by him after he arrives at age. That in order to avoid the deed mere words are not sufficient, but there must be some deliberate act done, by which he takes benefit under the deed or expressly recognizes its validity." In Hoyle v. Stowe, 18 N.C. 320 (cited in McCormic v. Leggett, supra), Chief Justice Ruffin, after doubting Houser v. Reynolds, 2 N.C. 143, stated the rule in reference to verbal declarations, relied on as a ratification of an infant's contract, to be that they operate as a confirmation of the deed only where they "are directly between the parties to the deed and contain an explicit recognition of the deed and expression of the maker's satisfaction with it, as a conveyance." If the ratification is in words it must amount to an express promise, made to the party to be benefited by it, or "an unequivocal act from which the inference is certain that a legal liability was meant to be acknowledged." Ibid., p. 328. But an infant can disavow his voidable deed after arriving at full age without directly treating with the grantee, either verbally or in writing, by executing a deed for the same land to a stranger. Hoyle v. Stowe, supra. It was held by the court of New York that a second conveyance after an infant attained his majority, was such a solemn act that even though the bargainor was out of possession, and it was therefore inoperative to pass the land, yet, being equally as notorious as the first conveyance, and inconsistent with the recognition of its validity, it was "an effectual avoidance of" the first deed. Jackson v. Burchin, 14 Johns., 124; (118) Jackson v. Carpenter, 11 Johns., 539.
In our case Beavans relies not on a verbal promise, but upon a solemn deed, which, though executed to a stranger, contained the most explicit acknowledgment, deliberately made, that the former conveyances had created a lien, still subsisting and superior to that created by the mortgage deed to Ward.
In the later case of Turner v. Gaither, 83 N.C. 362, Chief Justice Smith quoted the language of 2 Greenleaf, section 367, in which a distinction is drawn between executed and executory contracts.
We have in America two lines of authorities, the one holding that the infant's contract imposes no liability on him until created by a new ratification, having all of the elements of a new contract, except a new consideration; the rule being that there must be either "an express promise, or such acts, after the infant becomes of age, as practically lead to the conclusion that he intended to ratify the contract." The other theory is that the infant, on attaining his majority, may ratify the contract "upon the same principles, for the same reasons, and by the same means, as a debt barred by the statute of limitations may be revived." 10 A. E., 645. This Court may be classified as one of those that demands unequivocal evidence of an intention to ratify the voidable act, but the distinction is clearly recognized that mere words relied upon as a confirmation must have all of the elements of a new contract between the parties, while a solemn and notorious act, such as executing a deed that contains a recital inconsistent with the disaffirmance of the voidable conveyance, or a new deed aliening the land to another, may operate as a ratification or repudiation, though the grantee in both cases is a stranger, and the grantee in the original (119) deed, made during infancy, is not present nor a party to the subsequent deed.
We find in support of our view, that the Supreme Court of Massachusetts, at a very early period of its history, held that a subsequent deed of a grantor made after arriving at his majority for the whole of a piece of land, recognizing by a recital a former conveyance for a part of the same land executed during infancy and conveying subject to it, ratified his former deed and made it effectual in law to pass the land purporting to be conveyed by it. Bank v. Chamberlin, 15 Mass. 220. Other courts of this country have approved the principle laid down in that case. Scott v. Buchanan, 11 Humph. (Tenn.), 468; Palmer v. Miller, 25 Barb., 399; Irvine v. Irvine, 9 Wall., 617; Linde v. Budd, 2 Paige, 191. Precisely the same question, however, has been passed upon by some other courts, and they have followed the rule stated in Bank v. Chamberlin, supra; Losey v. Bond, 95 Ind. 67.
There is a striking analogy between the case at bar and that of Hinton v. Leigh, 102 N.C. 28, in which it was held that a similar recital in a mortgage deed of a lien created by a deed of trust executed previously but admitted to registration after the deed of later date, created a charge upon the land mentioned in the recital for the payment of the debt intended to be secured by the first mortgage, which the courts would enforce by ordering a sale, unless the debt should be discharged by a certain day. The judgment of the court below in our case declares the lien created by the ratification of the deed executed during infancy, and a sale is ordered on default in the payment of the debt due to the defendant Beavans before the day mentioned.
For the reasons given, we think that in holding that the mortgage deed executed during infancy was made effectual by the subsequent recital as far as to create a charge superior to the lien of the second conveyance, there was.
NO ERROR.
Cited: Weeks v. Wilkins, 134 N.C. 521.
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