Dixon v. Merritt

Berry, J. The mortgage involved in this action was made September 13, 1855, by Anna E. Agnew, owner in fee simple of the premises mortgaged, and an infant feme covert, and Edward C. Agnew, her husband. The statute then in force, Bev. Stat., ch. 46, § 2, provided that “ a husband and wife may, by their joint deed, convey the real estate of the wife, in like manner as she might do by her separate deed, if she were unmarried.” If the wife was an infant, this statute gave to the joint deed of her and her husband the same effect, as a conveyance of her real estate, as was given [200] to a deed executed by her as an infant feme sole. The better and now prevailing rule is that the deed of an infant, (and an infant feme sole is nothing more,) being an executed contract, (as for instance a mortgage of real estate,) is not void, but voidable at the infant’s election. 2 Kent, (12th Ed.) 236-9 and note 1; Irvine v. Irvine, 9 Wall. 617; State v. Plaisted, 43 N. H. 413 ; Hastings v. Dollarhide, 24 Cal. 195; 1 Am. Lead. Cas. 248. As the mortgage above mentioned was, therefore, not void, but voidable at Mrs. Agnew’s election, it was for her, if she desired to avoid it, to signify her desire, not only by refraining from any act of affirmance, but by performing some positive act of disaffirmance. Authorities supra. In this case, the mortgage had been so foreclosed by advertisement, that, if it had not been voidable and been avoided, the foreclosure would have conferred a good title upon the purchasers. After the title of the purchasers at the foreclosure sale had become perfect, (save so far as it was affected by the voidability of the mortgage,) and after Mrs. Agnew had arrived at majority, and had been divorced from her husband, she conveyed the mortgaged premises to the plaintiff by a warranty deed. This deed was a sufficient disaffirmance of the mortgage, unless, by delay or otherwise, Mrs. Agnew had lost her right to disaffirm — that is to say, had affirmed or ratified the mortgage. Authorities supra; Hoyle v. Stowe, 2 Dev. & Bat. Law, 320. Whether she had lost her right, and had affirmed or ratified the mortgage, was a question of fact, or perhaps of mixed fact and law, (Irvine v. Irvine, 9 Wall. 617; State v. Plaisted, 43 N. H. 413; 2 Kent, 236-9 and note 1,) which, upon the findings of the court below and the evidence reported, must be taken to have been answered in the negative, and found accordingly. But the defence principally relied upon is that the plaintiff is estopped, by a former judgment, from setting up Mrs. Agnew’s infancy. The judgment referred to was rendered in an action brought by Mrs. Agnew, (then a feme covert, but not an infant,) by her next friend, in which, after [201] alleging the execution of the mortgage and its foreclosure, further facts were averred, showing, as was contended, that before the foreclosure proceedings had been commenced, the mortgage had been satisfied. The relief sought was that the foreclosure might be. set aside, and the mortgage ordered to be satisfied of record. Judgment was rendered dismissing the action, upon the ground, (as appears from the findings in the case,) that the plaintiff was not entitled to the relief sought, or to any relief in that action. The plaintiff brings the present action to determine an alleged adverse claim of defendants. This claim defendants undertake to maintain by producing the mortgage and the proof of foreclosure. Plaintiff, as privy in estate with Mrs. Agnew, (Hoyle v. Stowe, 2 Dev. & Bat. Law, 320,) attacks the mortgage, claiming that it was voidable, as having been made by Mrs. Agnew while an infant, and as having been by her disaffirmed. In effect, then, in the former action, the mortgage was attacked solely on the ground that it had been satisfied, while in this action it is attacked on the ground that it was made by an infant, by whom it had been duly avoided. Without undertaking to lay down any general rule, applicable to all cases, by which to determine what questions are, and what are not settled by a former adjudication, it will be sufficient, for the purposes of this case, to say that in order-that a judgment in a former action should bind parties and privies, by way of estoppel, in a subsequent action, it must have directly decided a point which was material in such former action, and is in litigation in the latter. 2 Taylor on Evidence, §§ 1507, 1528 ; Broom’s Legal Maxims, 327 : Langmead v. Maple, 18 C.B. (N. S.) 255, 270 ; Demarest v. Darg, 32 N. Y. 281; Burlen v. Shannon, 99 Mass. 200; Boileau v. Rutlin, 2 Exch., 665 ; Aurora City v. West, 7 Wall. 82 ; People v. Johnson, 38 N. Y. 63 ; Hunter v. Stewart, 4 De Gex, F. & J. 169, 179 ; Woodgate v. Fleet, 44 N. Y. 1; Ere’eman on Judgments, § 271. Tried by this test, no argument is needed to show that the former adjudication, relied upon by the defendants, cannot be set up as a bar, by way of estoppel, to the present action. [202] Whether in this action, and upon the pleadings as they stand, the parties were properly entitled, as a matter of right and of good practice, to litigate all the matters which they have litigated in fact, is a question which we need not examine, in view of the circumstance that this has been done without any objection which we are called upon to consider. Order denying new trial affirmed.