This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Money expended for necessaries for an infant,1 or advanced to pay off a pre-existing debt for necessaries,2 is itself a necessary. So is money advanced for a discharge from jail.3 Money, itself, contrary to ordinary experience is not regarded by the Common Law as a necessary, even if the infant actually expends it for necessaries.4 The reason generally given for this absurd, but well-settled rule is that the liability of the infant is fixed at the moment of the loan; and since the fund is not a necessary or expended for necessaries at that moment, his subsequent investment of it in necessaries does not increase his liability. In equity, however, a more rational rule is adopted, and the party lending the money is subrogated as to so much thereof as is expended by the infant for necessaries, to the rights of the party furnishing the same.5 A loan of money to discharge prior valid liens on realty owned by the minor is not a necessary at law; that is, no personal judgment can be rendered against the minor for such indebtedness;6 but in equity the lender is subrogated to the rights of the holder of the prior valid liens, which have been paid off by the money advanced.7 This right does not exist where it is not shown that the lien thus discharged was valid as to the infant.8 Money loaned to an infant and not expended by him for necessaries is, of course, not a necessary.9
1 Thorp v. Connelly, 48 Mo. App. 59.
2 See Sec. 869.
3 Perrin v. Wilson, 10 Mo. 451; State v. Cook. 12 Ired. L. (N. C.) 67; Freeman v. Bridger, 4 Jones L. (N. Car.) ; 67 Am. Dec. 258; Connolly v. Assignees of Hull, 3 Mc-Cord. (S. C.) 6; 15 Am. Dee. 612. Contra, that such presumption does not exist, Parsons v. Keys, 43 Tex. 557.
4 See preceding note. Goodman v. Alexander, 165 N. Y. 289; 55 L. R. A. 781; 59 N. E. 145. In Kline v. L'Amoreux, 2 Paige (N. Y.) 419; 22 Am. Dec. 652, it was said that an infant under the care and control of a parent or guardian, able and willing to furnish him with necessaries cannot bind himself therefor without the consent of such parent or guardian.
5 Hoyt v. Casey, 114 Mass. 397; 19 Am. R. 371. This case cannot be reconciled with the general prin-ciples of this doctrine.
6 Trainer v. Trumbull, 141 Mass. 527; 6 N. E. 761.
7 Crafts v. Carr, 24 R. I. 397; 96 Am. St. Rep. 721; 60 L. R. A. 128; 53 Atl. 275.
1 Randall v. Sweet. 1 Denio (N. Y.) 460.
2 Hedgeley v. Holt, 4 Car. & P. 104 (obiter as in this case the articles were not necessaries) ; Swift v. Bennett, 10 Cush. (Mass.) 436; Kilgore v. Rich, 83 Me. 305; 23 Am. St. Rep. 780; 12 L. R. A. 859; 22 Atl. 176.
3 In ease of a civil claim, at least if the claim is for necessaries, Clark v. Leslie. 5 Esp. 28.
4 Earle v. Peale, 1 Salk. 386; 10 Mod. 67; Darly v. Boucher. 1 Salk. 279; Price v. Sanders. 60 Ind. 310; Bent v. Manning. 10 Vt. 225.
5 Marlow v. Pitfield. 1 P. Wms. 558; Watson v. Cross. 2 Dur. (Ky.) 147; Hickman v. Hall's Admrs. 5 Litt. (Ky.) 338.
6 Magee v. Welsh. 18 Cal. 155; Bicknell v. Bicknell, 111 Mass. 265. (In this case the loan was made at the request of the guardian, not of the infant.)
7 MacGreal v. Taylor, 167 U. S. 688; Charles v. Hastedt, 51 N. J. Eq. 171; 26 Atl. 564; Folts v. Ferguson, 77 Tex. 301; 13 S. W. 1037. "These debts having been paid by Mrs. U., the appellees are entitled in equity to be subrogated to the rights of the persons who held them, and who were about to foreclose the liens therefor when the application was made to Mrs. U. for the loan of $8,000 to be used in meeting those debts and improving the lot in question." MacGreal v. Taylor, 167 U. S. 688. 701; reversing in part on another point, Utermehle v. MacGreal, 1 App. D. C. 359.
8 Thormaehlen v. Kaeppel, 6 Wis. 378; 56 N. W. 1089.