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18 Cal. 155

Magee v. Welsh

California Supreme Court

Decided July 1, 1861

California Supreme Court · decided 1861-07-01

<p>Appeal from the Seventh District.</p> <p>Suit to foreclose a mortgage executed June 6th, 1856, by Henrique Welsh and Merced Martinez de Welsh, his wife, Angel Soto and Francisca Martinez de Soto, his wife, in favor of Miguel Yilar, on the undivided tenth of the “ Moraga rancho,” in Contra Costa county. The female defendants, Merced and Francisca, inherited this tenth interest on the first of January, 1856, from their mother, Guadalupe Moraga, to whom it came from their grandfather, Joaquin Moraga, who, in connection with Juan Bernal, was the grantee of the Mexican Government. At the time the interest in the ranch descended to Mercedes and Francisca, it was incumbered by a mortgage given "by the grandfather, Joaquin, and others, to Hugh O’Donnell, on the twenty-fifth of May, 1855. The proportion of this incumbrance which would-fall to Mercedes and Francisca was six hundred dollars, and they procured of Yilar an advance of this money, and to secure it, jointly with their husbands executed to him the mortgage upon which suit is brought—being at the time under eighteen years of age. There seems to have been no note given. Plaintiff is assignee of the mortgage.</p> <p>On the twehty-second of May, 1856, Angel Soto and his wife, Francisca—she being under eighteen years—executed to one Gañido a mortgage upon an interest in said ranch, amounting to two hundred acres, to secure their note to him for two hundred dollars, with interest. May 6th, 1856, defendants Henrique Welsh and Mercedes, his wife, she being under eighteen years of age, executed and delivered to Brown and Hendricks their mortgage upon an undivided one hundred and fifty acres of said ranch. At the date of both these mortgages the land was the separate property of the wives; and one Reed, made defendant, is the holder thereof. The wive§t when they became of age, disaffirmed and refused to be bound by the mortgages—at least, such is the language of the decree, though there is no other proof of the fact in the record. The answers set up the plea of infancy.</p> <p>The Court below held that the wives were not bound by any of the notes or mortgages, and accordingly entered a decree giving-personal judgment in favor, of plaintiffs, and against defendants Henrique Welsh and Angel Soto, for six hundred dollars, with interest, as due on the first mortgage; also a personal judgment in favor of Reed, and against the same defendants, for the amounts respectively due on the other two notes and mortgages. The decree also released and discharged the wives from all of the notes and mortgages, and declared them void, and ordered plaintiff and Reed to. deliver up their mortgages for cancellation. Plaintiff and defendant Reed appeal from so much of the decree a&■ rejects the mortgages.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1861-07-01

How this case has been cited

Cited by 5 later decisions — most recently June 1952

5 state decisions

201861187018801890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Baldwin, J. delivered the opinion of the Court

¶1Cope, J. concurring.

¶2The main question in this case is, whether a mortgage executed in 1856, by a femme covert under the age of eighteen, can be enforced against her plea oí infancy, the mortgage having been made upon the separate estate of the femme.

¶3The _Act of May 10th, 1854, (Wood’s Dig. 541) fixes the legal age of males at twenty-one and of females at eighteen, and provides that at those periods respectively they shall be competent to contract and to convey real estate. The Act of April 2d, 1858, (statutes, 108) provides that married women, when under the age of eighteen years, and married with the consent of their parent or guardian, shall be deemed of full and lawful age. It is true, that the Statute of Conveyances (Wood’s Big. 100, sec. 2) empowers husband and wife, by their joint deed, to convey real estate of the wife; but the act continues, “ in like manner as she might . do if unmarried.” Taking all these acts together, and it seems evident that the disability of infancy, as defined by the first act cited, attaches as well to femmes covert under age as to femmes sole, subject only to the Act of 1858, which has, however, no application to mortgages executed in 1856.

¶4It is urged in avoidance of this plea that the deed of an infant is not void, but only voidable, and that it will be held valid unless disaffirmed on the infant’s arrival at legal age. But if this doctrine be generally true, it would not apply to such a case as this—the case, namely, of a married woman, whose disability of coverture might prevent, if not the possibility, by her own volition, of an act of disaffirmance, yet its effectual exercise ; and the principle would not, moreover, apply to the case of a note and mortgage, in respect to which there would seem to be no act of disaffirmance necessary *160until demand, of payment were made or enforcement were sought. It seems that the refusal to acknowledge the asserted obligation was made as soon as payment was insisted upon.

¶5Nor if warranted by the record, is'the point better taken, that the mortgage and note are binding because-given to raise money to lift another mortgage upon the same property. This money so raised can scarcely be considered necessaries in contemplation of law, even if a mortgage executed to raise money for such a purpose be protected as a debit incurred for such a purpose.

¶6Some other points are made, but we do not think it necessary to notice them.

¶7Judgment affirmed.

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