Monumental Building Ass'n, No. 2 v. Herman

Stewart, J., delivered the opinion of the Court. This was a proceeding below, to foreclose two mortgages under the provisions of the Code of Public Local Laws, Art. 4, sees. 782, &c., applicable to the city of Baltimore, exclusively. An ex parte decree had been passed, a sale of the property ordered, and a report of sale thereunder made by the trustee. Objections were filed against the ratification of the sale by two of the mortgagors, alleging that they were infants, under the age of twenty-one years, when they executed the mortgages.

The mortgagee denied the fact of infancy, and insisted upon the insufficiency of the objections. The infancy of the objecting mortgagors was proved, and from the testimony as to the circumstances connected with the execution of the mortgages by them, it appears they were called upon to sign the same, and upon being interrogated as to their age, stated they were of age, but the evidence upon this subject is very meagre, and the infants seemed to have been passive in the transaction; and there is no evidence that any money was paid over to them. Under the provisions of our Statutory law, persons under the age of twenty-one years, are made competent to perform various binding acts, and there ¹³¹ cei’tainly is no distinct proof of fraudulent representation established. The Court below, by its order, sustained the objections, and refused to ratify the sale, and the appeal is taken from that order.

It has been urged here, for the mortgagee, that there was error in this order. 1st. Because, notwithstanding the infancy of the parties, they cannot avoid their deed during their infancy. 2d. That not only their suppression of the truth, but false representation that they were of age, shows such fraudulent conduct, as to estop them, in equity, from the benefit of their plea — infancy giving no privilege to cheat and defraud other parties. 3d. That before they can ask to be relieved from their contract, they must return the money loaned them, upon the well known principle, that whoever comes into Equity must be prepared to do equity.

By the common law, persons, under the age of twenty-one years, are not bound by their contracts, except for necessaries, nor can they do any act, to the injury of their property, which they may not avoid, when arrived at full age. Their responsibility for crime or fraudulent dealing, depends more on their discretion and power to discriminate right from wrong, what is just or otherwise, than on their age. Infants have this indulgence from their supposed want of judgment in their transactions with others, and the law takes this care of them to prevent them from being imposed upon, or overreached by persons of more years and experience. They are allowed to contract for their benefit with power in most cases, to recede from their contract when it may prove prejudicial to them, but in their contract for necessaries, such as board, apparel, medical aid, teaching and instruction, and other necessaries, they are absolutely bound, and may be sued and charged in execution; but it must appear that the things were absolutely necessary, and suitable to their circumstances, and whoever trusts them does so at his peril, or as it is said? deals with them at arms length. ¹³² Their power, thus to contract for necessaries, is for their benefit, because the procurement of these things is essential to their existence, and if they were not permitted so to bind themselves they might suffer.

If the infant has been supplied by his parents, guardian or friends, there can be no legitimate demand, on this account even, because there is no occasion for their being furnished by others. Some of their other contracts are absolutely void, such as those where there is no apparent benefit to the infant, but others are merely voidable, and the'law allows them when they come of age and are capable of considering over again,what they have done, either to ratify or to avoid the-contract. Whenever the act done, may be for the benefit of the infant, it is only voidable — if it were absolutely void, the adult party contracting with him, would be equally discharged. If the infant bargain and sell his lands, by deed, he may avoid it at any time, but his purchase is only voidable, and vests the freehold in him, until he disagree thereto, because a contract is presumed and may be for his benefit, and because the freehold cannot be in the grantor, contrary to his own act, nor can it be in abeyance.

They may be sued in Equity and their defence committed to a special guardian; and actions may be prosecuted in their behalf, by a next friend, because if the infant were not allowed to defend his possession, he might be deprived of all he had during his minority; and so of injuries done by an-infant, as in the contract for necessaries, he may be sued before his arrival at age, because