Hunter v. Bearn

Opinion by Judge Pryor : The demurrer to the petition was properly sustained. The principal question presented below was, Is the contract of an infant void or voidable? Whether void or voidable we think is immaterial here. After the feme had signed the mortgage, and after her arrival at age, she and her husband were sued to foreclose itt The mortgage was foreclosed and the land sold, and no reason is shown why she did not make defense to the action of foreclosure. Pier infancy when she signed it was a complete defense, and should have been made in that action. There is no relief now for her in an independent action, for no other reason than her infancy when she executed the mortgage. The cases referred to by appellant have no analogy to this. In the one case the infant, when sued, pleaded her infancy. In the other, as soon as she arrived at age she elected by action not to abide the contract. In this case she made no defense, but when sued, being [266] an adult, permitted judgment to go, and now offers to plead. It is too late. Thomas & Wathen, for appellant. Muir & Wickliffe, for appellees. As to the mere question whether the acts of an infant are void or voidable, the elementary books and all the decisions we know of adjudge their contracts voidable only. What effect her being a feme covert at the time has on the question is not necessary to be determined. Judgment affirmed.