Fox v. Salzano ( 1912 )

SCOTT, J.

The plaintiff sues to foreclose a mortgage on real estate in the city of New York, made by one John Di Mattia on April 16, 1909. Among the allegations of the complaint is one to the effect:

“That the defendants (of whom appellant is one) have or claim to have some interest in or lien upon the said mortgaged premises, or- some part thereof, which interest or lien, if any, is subject and subordinate to the lien of the safd mortgage held by plaintiff.”

This is the usual clause inserted in complaints in foreclosure cases, and its purpose and effect is to foreclose and cut off the defendants from thereafter asserting a claim or lien superior to the lien of plaintiff’s mortgage. The defendant, by her guardian ad litem, controverted this allegation of the complaint, and set up in her answer a prior mortgage upon the same property given to her by her father before the execution of the mortgage held by plaintiff.

The facts, which the court refused to find, are undisputed, and are as follows: On April 20,1908, John Di Mattia executed and delivered to appellant, then an infant 17 years of age, a bond for $1,000 with a mortgage to secure the same covering the same premises afterwards mortgaged to plaintiff. The mortgage was recorded in the register’s office on July 1, 1908. The precise consideration for this bond and mortgage was not shown, because the trial court refused to receive evidence of the conversation between the appellant and her father when the delivery was made. It does appear, however, that the bond and mortgage was delivered on the occasion of appellant’s marriage, and it may perhaps be inferred that it was given as a wedding gift or settlement. On July 10, 1908, at her father’s request, and while she was still a minor, she executed a satisfaction piece of said mortgage, which was recorded in the register’s office on October 19, 1908. The mortgage was thereupon discharged of record, and appeared as so discharged when plaintiff’s mortgage was executed. It appears that appellant received from her father, in exchange for the surrender of the bond and the execution of the satisfaction piece, an undivided' one-third interest in other premises then belonging' to her father, and known in this case as the “brick house.” The guardian ad litem of the appellant has deemed it his duty to set up the mortgage executed to appellant as an existing lien superior to the lien of plaintiff’s mortgage, and to disaffirm, in behalf of his ward, her execution of the satisfaction piece. He expressed on the trial the appellant’s willingness to reConvey the interest in the brick house, but such an offer was necessarily futile because the appellant, being at the time of the trial still an infant, could not make a valid conveyance.

[1] We think that there is no doubt that the satisfaction of the mortgage was an act which the appellant could disaffirm when she came of age. It is a rule of 'universal acceptance that a contract made by an infant is voidable at his election when he arrives at full age, and this irrespective of the question whether or not the contract appears to have been one beneficial to the infant. A satisfaction of a mortgage is in effect a contract, and is certainly more than a receipt for so much money received, for it also embraces a consent to the destruction of the security. It may be that it cannot be disaffirmed for her by a guardian before maturity, but the plaintiff is not injured by the guardian’s attempt to disaffirm in the present case. Treating the satisfaction as disaffirmed or at least as subject to disaffirmance when the appellant arrives at age, she remains the owner and holder of a mortgage upon the property superior to that of plaintiff.

[2] She is bound, however, if she persists in her disaffirmance, to return the consideration which she received, but, as already stated, it was impracticable to make such return at the time of the trial, both because she was then still an infant, and because her father who conveyed to her the interest in the brick house is not a party to the action. We think that it was error to refuse to find the facts relating to the mortgage to appellant, and her-satisfaction, because, unless such facts are found, an equitable disposition of the rights of the parties cannot be made. There must therefore be a new trial. By the time that trial can be had the appellant will have attained her majority, and will be in a position to affirm or disaffirm her act in executing the satisfaction piece, and to make such return of consideration received therefor as may be just. Although the interest in the brick house was conveyed to appellant by her father, it may be that under the terms of his mortgage to plaintiff equity would subrogate her to his right to receive a reconveyance. Before this can be done, however, the father should be made a party to the action.

The judgment appealed from must be reversed, and a new trial granted, with costs to appellant to abide the event.

MCLAUGHLIN, MILLER, and DOWLING, JJ„ concur. •