Walton v. Gaines

• Decision Date: 14 February 1895
• Citation: 29 S.W. 458
• Parties: WALTON v. GAINES et al.
• Court: Tennessee Supreme Court

Page 458

29 S.W. 458

WALTON v. GAINES et al.

Supreme Court of Tennessee.

February 14, 1895.

Appeal from chancery court, Davidson county; J. C. Bradford, Special Chancellor.

Bill by I. N. Walton, executor, against J. W. Gaines, minor, and others, to foreclose a mortgage upon the general estate of his deceased mother, executed by her while a minor and under the disability of coverture, and which she attempted, after attaining her majority, but while still under the disability of coverture, to ratify. From a decree dismissing the bill, so far as it sought to subject the estate of the minor to the payment of the mortgage debt, complainant appeals. Affirmed.

J. C. McReynolds, for complainant. Frank Slemons and E. A. Price, for defendants.

BEARD, J.

In July, 1887, Louise L. Gaines, being then a minor and a married woman, joined her husband in the execution of a mortgage conveying certain realty, constituting a part of her general estate, to secure one Watkins, complainant's intestate, in the payment of a note of $8,000. After reaching her majority, and while yet a feme covert, at the request of the mortgagee, and without any new consideration, she executed and delivered to him a paper in the following words, to wit: "I, Louise L. Gaines, being 22 years of age in November, 1889, and having signed certain notes and mortgage for $8,000.00 to William Watkins in 1887, when I was a minor, hereby take pride and pleasure in ratifying, affirming and indorsing the said acts as fully as if I had been 21 years of age when I signed the same. [Signed] Louise Lytle Gaines." Soon after the execution of this paper, and while yet under the disability of coverture, Mrs. Gaines died, leaving surviving her an infant of 2 years. The bill in this cause was filed, among other purposes, to foreclose this mortgage, and this infant was made a defendant thereto. In the progress of the cause, a guardian ad litem was appointed for this minor, who interposed, for the protection of his ward, the infancy and coverture of the mother. The chancellor decreed that the minor child had the right to disaffirm this deed, and dismissed the bill, so far as it sought to subject the estate of this minor to the payment of the mortgage debt. The complainant has filed the record in this cause in this court for writ of error, and has assigned for error the action of the court below in thus dismissing his bill.

That the mortgage of his real estate by a minor is not void, but only voidable, subject to be affirmed or disaffirmed by him after he reaches majority, is well settled in this state. McGan v. Marshall, 7 Humph. 120; Robinson v. Coulter, 90 Tenn. 705, 18 S. W. 250. When the disabilities of infancy and...