Watson v. Ruderman

Prentice, J. The plaintiff contends that the court’s action in sustaining the demurrer to the reply was erroneous, for reasons which, in the brief of counsel, are resolved into three, to wit: first, because, for the purposes of the demurrer, the defendant must be regarded as having waived the defense of infancy, since it was not therein specifically appealed to; second, because a foreclosure might have been properly awarded upon the facts set up; and third, because equity might grant relief either by compelling the infant defendant to elect to affirm or disaffirm the transaction, or •by making such election for him and thereupon establishing what had in form been done, or, as the case might be, setting the same aside and restoring the parties to their former status. The reply, in so far as it set up facts for the purpose of claiming, and claimed, the relief demurred to, was not a proper pleading. The office of a reply is to meet matter averred in the answer. It may not be used, as here, to set up facts for the purpose of obtaining distinct affirmative *690 relief. Prayers for relief have no place save in a complaint, cross-complaint, or answer embodying a counterclaim. When the plaintiff discovered that he desired relief not already prayed for, he should h'ave amended his complaint to embody it, and such facts, in addition to those already therein, as were deemed pertinent. Instead of pursuing this course, which would have presented a complaint disclosing the defendant’s legal incapacity to enter into the contracts and conveyances set up, he sought to avoid in his reply the effect of that incapacity which had been asserted and admitted, by an appeal for distinct and affirmative equitable relief. To this end, certain facts in part new to the case were stated in a form suggestive of an equitable counterclaim, and such relief as was conceived to be appropriate to the facts of the case, including the admitted infancy, prayed for. Under such circumstances the defendant was in fairness entitled to have the appropriateness of the prayers for relief contained in the reply put to the test of his demurrer, with a regard not only for the facts alleged in the reply but also for the other fact to which the reply was specially addressed and without which the prayers had no pertinence. The plaintiff’s first reason for claiming error, which it is to be noticed was not sufficiently assigned in the reasons of appeal, must therefore, for a double reason, fail. The plaintiff’s argument in support of his second contention that a foreclosure might have been granted, establishes nothing more than that a minor may be foreclosed. This is of course true: but the effort here is not only to foreclose a minor, but to do so upon a note and mortgage executed by such minor. The contract embodied in the note, and the conveyance of title effectuated by the mortgage, were alike voidable. The defendant, by the accepted rule of public policy, was entitled to dis-affirm them. This disaffirmance might be exercised after the attainment of majority—a time still in the future—and in so far as the mortgage was concerned could not, by the current of authority, be sooner exer *691 cised. Kline v. Beebe, 6 Conn. 494, 503-505; Shipman v. Horton, 17 id. 481, 483; Bestor v. Hickey, 71 id. 181, 184-186, 41 Atl. 555; Coburn v. Raymond, 76 Conn. 484, 491, 57 Atl. 116; Sims v. Everhardt, 102 U. S. 300, 309. The plaintiff, therefore, stands in the position of asking a mortgage to be foreclosed which, as far as appears, has no established status. Such a mortgage may not be made the subject of foreclosure until and unless its status shall have been first established as that of a conveyance not subject to avoidance at the will of the mortgagor. We are thus brought to the underlying question of the case, which is whether or not a court of equity may, by compelling the present exercise by or for the defendant, of his right of affirmance or disaffirmance, or by exercising for him the choice which is his, or in some other way, fix definitely and finally the status of the transactions recited in the record, and thus either establish the validity of the note and mortgage as a preliminary to a foreclosure, or in some other manner permanently settle the rights of the parties. In answering this question we must bear in mind that the incapacity of infants to enter into binding contracts or make valid conveyances is the same in equity as at law, and that the same rules of public policy govern and the same consequences attach. 2 Pomeroy’s Equity Jurisp. (3d Ed.) §945. It follows that, in the absence of other facts than that of an infant’s participation in a contract or. conveyance, there cannot exist a situation in which, through the operation of an estoppel, validity will be given to it, or through equitable intervention it will be set aside, and thus by one means or the other an effect be given to the transaction different from that which the general policy of the law has seen fit to attach to it. Baker v. Stone, 136 Mass. 405 ; Corey v. Burton, 32 Mich. 30, 32. In other words, a court, whether of equity or of law, will not hold itself justified in depriving an infant who was of the age of presumed natural capacity at the time of his participation in a property transaction, of the *692 right or privilege, which is deemed essential to his proper protection, of affirming or disaffirming it upon his arrival at the age of legal capacity, unless there appears in the situation presented some fact in addition to such participation—some fact which is recognized as furnishing the basis for equitable interposition generally, or as laying the foundation for an estoppel. The active fraud or false representation as to age by the infant has been recognized as furnishing such a fact. Ex parte Unity Banking Asso., 3 De Gex & J. 63; Nelson v. Stocker, 4 id. 458, 464; Wright v. Snowe, 2 De Gex & Sm. 321; Lempriere v. Lange, L. R. 12 Ch. Div. 675 ; Hayes v. Parker, 41 N. J. Eq. 630, 632, 7 Atl. 511; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420; Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411; Ryan v. Growney, 125 Mo. 474, 28 S. W. 189, 755 ; Kilgore v. Jordan, 17 Tex. 341. Such conduct on the part of an infant has, however, frequently been held to be insufficient to create an estoppel. Sims v. Everhardt, 102 U. S. 300 ; Burley v. Russell, 10 N. H. 184; Whitcomb v. Joslyn, 51 Vt. 79 ; Studwell v. Shapter, 54 N. Y. 249 ; Wieland v. Kobick, 110 Ill. 16; Corey v. Burton, 32 Mich. 30, 32; Alvey v. Reed, 115 Ind. 148, 149, 17 N. E. 265; Conrad v. Lane, 26 Minn. 389, 4 N. W. 695; Lackman v. Wood, 25 Cal. 147. Mere concealment of infancy has by common consent been regarded insufficient to that end, or as in any way creating an enforcible obligation. Stikeman v. Dawson, 1 De Gex & Sm. 90; Baker v. Stone, 136 Mass. 405 ; Davidson v. Young, 38 Ill. 145; Stoolfoos v. Jenkins, 12 Serg. & R. (Pa.) 399, 403; Brantley v. Wolf, 60 Miss. 420. We have no occasion to consider the questions which are suggested by these cases. Reference is here made to the attitude which the courts have assumed, only for the purpose of showing their reluctance to withdraw from infants the privileges, as respects their property engagements, which are bestowed upon them for their protection, and that such withdrawal is never countenanced except under strong justification from circuinstances other than their participation in the transaction. *693 The facts spread upon this record will be examined in vain for such a circumstance. It contains nothing pertinent to the plaintiff’s right to invoke judicial aid, save that the plaintiff sold and conveyed to the defendant minor the equity of redemption in the land in question in consideration of the latter’s assumption of an existing mortgage thereon, the payment down of a sum in cash, and the execution and delivery by the defendant to the plaintiff of the note and mortgage in suit, and that this note has never been paid. There is no averment of any fraud or fraudulent representation; not even one of concealment. In fact it does not appear that the plaintiff was not fully aware of the defendant’s infancy and voluntarily chose to assume the risk of dealing with him. The substance of the plaintiff’s allegations and prayers, therefore, is that he dealt with a minor, and now asks the law to relieve him from the inconvenience, hazard, and possible loss attending such transactions. He wishes to escape the consequences which the law has seen fit to attach to the situation in which he finds himself, and no reason for that escape is presented save such as the general policy of the law has adjudged inadequate. Clearly he has failed to show a case for equitable intervention. There is no error. In this opinion the other judges concurred.