State v. Plaisted

Bartlett, J. If the mortgage of the infant were to be regarded as an executory contract, it would be invalid until it was ratified ; and if it is deemed an executed contract, it is binding until it is avoided. Edgerly v. Shaw, 25 N. H. 516; Carr v. Clough, 26 N. H. [414] 295. The decision in Insurance Co. v. Noyes, 32 N. H. 345, is not in conflict with these cases, for the contract there was not executed. A mortgage of real estate by a minor is deemed an executed contract. Palmer v. Miller, 25 Barb. 399; Roberts v. Wiggin, 1 N. H. 74; Robbins v. Eaton, 10 N. H. 563; Eagle Ins. Co. v. Lent, 6 Paige 638. All contracts of infants taking effect by manual delivery, so as to convey an interest and not a mere power, are not void but voidable. Zouch v. Parsons, 3 Burr. 1804; Bool v. Mix, 17 Wend. 131; 2 Kent 236, 237, and n.; McPherson Inf. 468. The mortgage here took effect by delivery, and passed title to the mortgagee. Fergurson v. Clifford, 37 N. H. 99; Call v. Gray, 37 N. H. 433; Leach v. Kimball, 34 N. H. 570; Barker v. Hall, 13 N. H. 302; Fuller v. Rounceville, 29 N. H. 562. We see no reason, therefore, to except a mortgage of chattels from the general rule which is applied to mortgages of real estate. Heath v. West, 26 N. H. 198; S. C. 28 N. H. 108; Low v. Gist, 5 Har. & J. 106, and n. Any act of the defendant clearly showing his intention' not to be bound by this mortgage, is a sufficient avoidance of it. Heath v. West, 26 N. H. 199; Roberts v. Wiggin, 1 N. H. 75; Campbell v. Cooper, 34 N. H. 67; 2 Kent 237, and n.; Chit. Cont. (10th Am. Ed.) 155, and n. We think an unconditional sale of the mortgaged chattel is such an act. The case does not show whether, at the time of the sale, the defendant was a minor; if he was he might avoid an absolute sale of the chattel; Carr v. Clough, 26 N. H. 293; and of course this mortgage. If he were of age, and it were to be held that he must dis-affirm the mortgage within a reasonable time after attaining his majority (see Richardson v. Boright, 9 Vt. 370; 2 Kent 238, 239, and n.; Chit. Cont. 170-173, and n.; 256, and n.; Story Cont., sec. 72; 2 Greenl. Ev., sec. 369, and n.), still the question, what would be a reasonable time in this case, would depend upon the circumstances, and would be for the jury, under the instructions of the court. Odlin v. Gove, 41 N. H. 476; Tyler v. Webster, 43 N. H. 147. It is unnecessary, therefore, to inquire whether there is any such requirement as to a reasonable time in a case like the present. We do not thinkthe verbal consent of the mortgagee to the saléis a sufficient answer to the indictment, as the statute expressly requires a written consent to justify a sale. Rev. Stat., ch. 132, sec.8-10. Another question might arise in this case, whether, if the mortgage were avoided, the vendee could be a party injured by the sale, within the meaning of the statute; but the views we have expressed seem to dispose sufficiently of the questions transferred. Our opinion must, therefore, be certified to the court at the trial term that the evidence of the minority of the defendant at the time of the execution of the mortgage, was competent; but that the verbal assent of the mortgagee to the sale of the mortgaged chattel furnishes no defense to this indictment.