This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
45a. Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Prout v. Wiley, 28 Mich. 164; Donovan v. Ward, 100 Mich. 601, 59 N. W. 254; Shipp v. McKee, 80 Miss. 741, 92 Am. St. Rep. 616, 32 So. 281; Lacy v. Pixler, 120 Mo. 383, 25 S. W. 206.
46. Sims v. Bardoner, 86 Ind.
44 Am. Rep. 263; Hughes v. Watson, 10 Ohio, 127; Robinson v. Allison, 192 Mo. 366, 91 S. W. 115.
47. As in Hoffert v. Miller, 86 Ky. 572, 6 S. W. 447; O'Donohue v. Smith, 130 N. Y. App. Div. 214, 114 N. Y. Supp. 536.
48. Ante, this section, note 33.
49. See O'Donohue v. Smith, 130 N. Y. App. Div. 214, 114 N. Y. Supp. 536; note 9 Columbia Law Rev. at p. 362.
50. Wells v. Seixas (C. C.) 24 Fed. 82; Bozeman v. Browning, 31 Ark. 364; Hoffert v. Miller, 8C Ky. 572, 6 S. W. 447; Compare Shipp v. McKee, 80 Miss. 741, 92 Am. St. Rep. 616, 32 So. 281.
Purchase money mortgage. While a mortgage by an infant is ordinarily voidable, his right to avoid a purchase money mortgage made by him to his vendor is dependent upon his relinquishment of his right to the land, that is, the conveyance to him and his mortgage thereon constitute in legal effect but one transaction, and he cannot claim the benefit of the conveyance and at the same time repudiate the mortgage.54 Consequently if, after majority, he ratifies his acquisition of the land by disposing of it to another55 or by retaining possession of the land,56 he thereby ratifies the mortgage. Likewise, if at the time of the acquisition of the property by an infant he makes a mortgage to a person other than the vendor, to secure money loaned to him, and the conveyance to him and the mortgage can be regarded as parts of one transaction, the mortgage cannot be repudiated so long as the property is retained.57 And if an infant mortgages bis land in order to procure money with which to relieve the land of an existing lien, the person lending the money may occasionally, even though the mortgage is disaffirmed, assert a lien as against the land, on the theory of subrogation.58
51. Kountz v. Davis, 34 Ark. 590; Putnal v. Walker, 6l Fla. 720, 36 L. R. A. (N. S.) 33, 55 So. 844; Robinson v. Allison, 192 Mo. 366, 91 S. W. 115.
52. Ante, this section, note 41.
53. Blankenship v. Stout, 25 111. 132; Weeks v. Wilkins, 134 N. C. 516, 47 S. E. 24.
54. Heath v. West, 28 N. H. 101; Hubbard v. Cummings, 1 Me. 11; Kenedy v. Baker, 159 Pa. St. 146, 28 Atl. 252; Callis v. Day, 38 Wis. 643; Richardson v. Boright, 9 Vt. 368.
55. Hubbard v. Cummings, 1 Me. 11; Uecker v. Koehn, 21 Neb. 559, 59 Am. Rep. 849, 32 N. W. 583.
56. Robbins v. Eaton, 10 N. H. 561; Dana v. Coombs, 6 Me. 89; Boody v. McKenney, 23 Me. 517; American Freehold Land Mortgage Co. v. Dykes, 111 Ala. 187, 56 Am. St. Rep. 38, 18 So. 292.
57. Thurstan v. Nottingham, etc., Society (1902) 1 Ch. 1, (1903) App. Cas. 6; Ready v. Pinkham, 181 Mass. 351, 63 N.
Conveyance to infant. A conveyance to an infant, like a conveyance by him, is voidable merely, and must be repudiated by him within a reasonable period after his arrival at full age.59
Transfer by will. The English Statute of Wills, with its explanatory act passed two years later, excluded persons under twenty-one years of age from those authorized to transfer lands by will, though males over fourteen and females over twelve could at that time transfer personalty.60-61 In this country, the statutes of the various states are not uniform in regard to the age at which one may make a will, a distinction sometimes existing between wills of real and personal property in this regard, and sometimes not, and the required age of a female being in some states less than that of a male. In a majority of the states, however, a testator of either sex must be twenty-one years of age.62
B. 887; Dana v. Coombs, 6 Me. 89, 19 Am. Dec. 194. See notes, 14 Harv. Law Rev. at p 388; 15 Id. at p. 494. Compare Citizens' Building & Loan Ass'n v. Arvin, 207 Pa. 293, 56 Atl. 870.
58. See Mac Greal v. Taylor, 167 U. S. 688, 42 L. Ed. 326; Langdon v. Clayson, 75 Mich. 204, 42 N. W. 805; United States Investment Corporation v. Ul-rickson, 84 Minn. 14, 87 Am. St. Rep. 326, 86 N. W. 613; American Freehold Land Mortgage Co. v. Dykes, 111 Ala. 178, 56 Am. St. Rep. 38, 18 So. 292.
59. Ketsey's Case, Cro. Jac. 320; American Freehold Land Mortgage Co. v. Dykes, 111 Ala. 178, 56 Am. St. Rep. 38, 18 So. 292; Boody v. McKenney, 23 Me. 517; Scanlan v. Wright. 13 Pick. (Mass.) 523, 25 Am. Dec. 344; Ellis v. Alford, 64 Miss. 8, 1 So. 155; Baker v. Kennett, 54 Mo. 82; Robbins v. Eaton, 10 N. H. 561; Henry v. Root, 33 N. Y. 526; Dewey v. Burbank, 77 N. C. 259; Johnston v. Furnier, 69 Pa. St. 449.
60-61. 1 Jarman. Wills (5th Ed.) 33, and note.
62. 1 Stimson's Am. St. Law, chaser for value from the grantee,68 but there are also decisions to the effect that if the conveyance can be avoided as against the original grantee, it can as against any subsequent purchaser without reference to his ignorance of the infirmity therein.69 It appears to be agreed that the ignorance of the grantee at the time of the transaction, although he paid a valuable consideration, does not affect the right of the grantor to repudiate the conveyance,70 except as, in some states, the grantee is entitled to a return of the consideration paid by him.71
595. Persons mentally incapacitated. In determining whether a person has the mental capacity to make a valid and binding conveyance, the only question is whether he is able to clearly understand the nature and consequences of the conveyance, and the fact that his mental powers are impaired, or that he is subject to a delusion, if this is not such as to influence him in making the conveyance, does not impair its validity.63 One who, at the time of making a conveyance, is unable to understand its nature and effect by reason of intoxication, stands, it seems, upon the same footing in this regard as one who is otherwise mentally incapacitated.64