Temple v. Norris

Collins, J.

But one feature of the complaint in this action need be considered. It was therein alleged that the only person upon whom a copy of the foreclosure notice was served was but “fourteen years old, and no more, and was wfholly unaccustomed to, and unfamiliar with, business transactions and all legal proceedings, and that she was not of suitable age or discretion; that she was then wholly incapable of understanding and comprehending the nature and gravity of the transaction, and did not understand the nature or gravity thereof.”

The statute does not, in terms, require that service shall be made by leaving a copy of the notice with a person accustomed to, or familiar with, business transactions or legal proceedings, or with a person who is capable of understanding and comprehending the nature and gravity of the transaction, or who does understand and comprehend it. It does require that the person with whom a copy is left, when sendee is made at the house of the usual abode, shall be of suitable age and discretion. 1878 G-. S. ch. 81, § 5, and Id. ch. 66, § 59, subd. 4.

Now it should not be inferred that because the person with whom the copy was left was unfamiliar with, and unaccustomed to, business transactions and legal proceedings, and because she did not understand and comprehend what counsel terms the gravity of the transaction, that she was not a person of suitable age and discretion, within the meaning of the statute. This same charge might easily be made with regard to many adults, so that the allegation, when analyzed, really amounts to nothing more than charging that because the girl; who was the daughter of the occupant of the mortgaged premises, was but fourteen years of age, she was not of suitable age and discretion. There is no averment in the complaint that she was not ordinarily intelligent, and in full possession of her faculties, and we must therefore presume that she was as well informed, and as capable, as the ordinary female of the age of fourteen years. At common law, on the attainment of this number of years, the criminal actions of infants are subject to the same modes of construction as those of the rest of society; for the law presumes them, at those years, to be capable of crime. ' 1 Hale, P. C. 25; Bac. Abr. “Infancy,” A, H. By the terms of oúr Penal Code, (section 17,) a child of the age of seven, and under the age of twelve, years, is presumed incapable of crime, but even this presumption may be removed by proof of sufficient capacity. At common law a female of the age of fourteen is at years of legal discretion, and may choose a guardian. 1 Bl. Comm. 463. By our statute the right to nominate a guardian is conferred upon an infant of the age of fourteen. And the summons in a civil action is to be served upon an infant defendant when fourteen years of age or upwards, — not upon a guardian. These statutory provisions indicate that a person who has attained the age of fourteen is at years of legal discretion, and, it must follow, of suitable age and discretion, in the contemplation of the statute regulating the service of the notice of foreclosure. There is no requirement that the notice must be left in the hands of a person of full age. As the pleading stated Miss Lyon to have been fourteen years of age, and failed to allege that she was not ordinarily intelligent and capable, and in full possession of all her faculties, or to negative in any other manner the presumption before referred to, the demurrer' was well taken. Of course the bare averment that she was not a person of suitable age and discretion was a mere conclusion of law.

On the other point argued by counsel, we call attention to Knappen v. Freeman, 47 Minn. 491, (50 N. W. Rep. 533.)

Order affirmed.

Vanderburgh, J., took no part in this case.

(Opinion published 55 N. W. Rep. 133.)