be in the position of a trustee as regards raising the defence of Chap. XX. the statute (y). § 2 (xiv). SECTION III. MORTGAGES OF PROPERTY OF INFANTS. i.-Disability of Infancy.-An infant, being generally inca- Disability of pable of binding himself by contract, cannot of himself enter infancy. into a contract of mortgage, or create a valid security on his property for mortgage moneys. gavelkind. Although an infant may by the custom of gavelkind convey Custom of by feoffment with livery of seisin, yet this must be taken strictly, and extends only to sales for valuable consideration; the liberty of selling was allowed for the convenience of commerce, which in the case of small divided shares was absolutely necessary (z); and accordingly it is clear that the custom does not enable an infant to create or concur in a mortgage of gavelkind lands. ii.-Power to mortgage Property of Infants.-Where a suit is instituted in any Court of equity for the payment of debts of a deceased person to which his heir or devisee is liable, and such heir or devisee is an infant, the Court may direct a mortgage as well as a sale of the estates of such infant heir or devisee. And where any hereditaments are devised in settlement by a person whose estate is liable to the payment of his debts, so as to vest in any person for life or other limited interest, with remainder over, the Court may authorize such sales and mortgages to be made in cases where such tenant for life or other person having a limited interest is an infant. moneys. The surplus of money arising from such sale or mortgage is to Devolution of descend in the same manner as the estates so sold or mortgaged surplus would have done if no such sale or mortgage had been made. The Court may direct, and, if necessary, compel such infant Power of to convey the estates to the mortgagee in such manner as the Court thinks proper and directs, and the infant must convey infants' lands. (y) Re Dixon, Heynes v. D., (1900) 2 Ch. 561, C. A. (z) Sandys' Cons. Kanc. 169; Bac. Abr. vol. iv. 7th ed. p. 49; Re Maskell Court to direct conveyance of Chap. XX. accordingly, and the conveyance is to be valid and effectual to all intents and purposes as if the infant had been of full age at the time of executing the same (a). § 3 (ii). Mortgage of infant's property for repairs. Mortgage to raise money for fines. Redemption of land tax. Mortgage of infant's ship. Settled Land The Court has no power, under the enactments above referred to, in an administration action, in which a certain sum is decreed to be raised out of the testator's real estate for payment of debts, to add to the sum required for that purpose a further sum for repairs of the property, although without such repairs the money could not be raised, and a mortgage would be much more beneficial to the infant heir or devisee than a sale (b). The Court, however, has jurisdiction, upon the principle of salvage, to order a mortgage of the lands to which an infant is entitled in possession for repairs; but the jurisdiction is jealously exercised, and only to the extent of such repairs as may be certified to be absolutely necessary (c). And the jurisdiction apparently extends so as to enable the Court, with the concurrence of the next remainderman, to charge the interest of an infant actually entitled as tenant in tail (d), but not so as to enable the Court to charge the interest of an infant tenant for life in remainder (e). The Court has, apparently, no jurisdiction to order a fine payable for admittance to copyholds of a customary heir, who is an infant, to be raised by mortgage of the copyholds (ƒ). Where the guardian of an infant tenant in tail redeems the land tax, the sum paid is a charge on the inheritance (g), although no declaration has been made according to the statute 38 Geo. III. c. 60 (h). The guardian of an infant, who is the registered owner of a ship, has no power under the Merchant Shipping Act (i) to sell or mortgage the ship on behalf of the infant (k). As to mortgages of lands of infants under the Settled Land Acts, see Chap. XXII. (1). As to mortgages and charges for maintenance of infants, see Chap. XX. Chap. XXIII. (m). § 3 (ii). If the personal estate of an infant be applied in paying off a Maintenance. mortgage debt secured on his real estate, the debt will be kept Mortgage alive as personal estate (n). paid off out of infant's personalty. iii.—Avoidance of Contracts by Infants to repay Loans.-By Contracts by the Infants' Relief Act, 1874 (0), all contracts, whether by infants for repayment of specialty or by simple contract, entered into by infants for the loans are void. repayment of money lent or to be lent (other than contracts for necessaries) are absolutely void, and no action can be brought on any promise made after coming of age to pay any debt contracted during infancy, nor on any ratification of a contract made during infancy, whether there is new consideration or not. The Betting and Loans (Infants) Act, 1892 (p), provides Penalty on that persons sending to infants circulars, and inciting them to inciting borrow money, are to be guilty of misdemeanour. And by borrow. sect. 5 of the same Act it is enacted as follows: infants to loan advanced "If any infant, who has contracted a loan which is void in law, Avoiding agrees after he comes of age to pay any money which in whole or contract for in part represents or is agreed to be paid in respect of any such payment of loan, and is not a new advance, such agreement, and any instru- during ment, negotiable or other, given in pursuance of or for carrying infancy. into effect such agreement, or otherwise in relation to the payment of money representing or in respect of such loan, shall, so far as it relates to money which represents or is payable in respect of such loan, and is not a new advance, be void absolutely as against all persons whomsoever. "For the purposes of this section any interest, commission, or other payment in respect of such loan shall be deemed to be a part of such loan." enactment. The effect of the above enactments seems to be that an infant Effect of this cannot during infancy mortgage or charge, or agree to mortgage or charge, his property to secure a loan, nor will any such mortgage, charge, or agreement to secure a loan made to him during infancy be valid, unless the loan was for the purpose of paying for necessaries, but that a debt for necessaries or a loan made to him during infancy for the purpose of paying for (m) Post, p. 444. (n) Seys v. Price, 9 Mod. 217, 221; Exp. Phillips, 19 Ves. 122. (0) 37 & 38 Vict. c. 62, s. 2. (p) 55 & 56 Vict. c. 4; cf. Re Foulkes, 69 L. T. 183, as to the law before the Act. As to presumption of knowledge of infancy, see Moneylenders Act, 1900, s. 5. § 3 (iii). Fresh mort Chap. XX. necessaries will be a sufficient consideration to support a mortgage or charge of his property made on attaining full age (9). But where an infant gave a mortgage which was reconveyed to him on his coming of age, and a fresh mortgage was executed by him of the same property to secure a larger amount, it was held that this was not a mere ratification, but that the mortgage was a valid security for the whole amount (r). gage on attaining full age. The Building Societies Act, 1874, s. 38, does not enable an infant to borrow money on mortgage. A mortgage by an infant to a building society to secure advances made to the infant for the purpose of building is void, and in the absence of fraud on the part of the infant will be ordered to be cancelled. But where an infant borrows money on mortgage for the purpose of purchasing land the transaction is voidable only, and the infant cannot on coming of age affirm the purchase and repudiate the mortgage. If he affirms the purchase the lender has a lien to the extent to which his money discharged the vendor's lien (8). Quare whether an infant is not liable in equity to pay a debt incurred by fraud (t). SECTION IV. MORTGAGES OF PROPERTY OF LUNATICS. i. Jurisdiction to mortgage Property of Lunatics.-Independently of statutory enactment, neither the committee of a lunatic nor any other person has power to mortgage or charge the lunatic's property; but such property may be mortgaged or charged with the sanction of the Lord Chancellor, under the statute 43 Geo. III. c. 75 (u). This statute was repealed, but its provisions were adopted and amended by the statute 1 Will. IV. c. 65, which was, in its turn, (a) See, as to loans of money for necessaries, Com. Dig. tit. Enfant (c), 2; Probert v. Knouth, 2 Esp. 472, n.; Hedgeley v. Holt, 4 C. & P. 104; Martin v. Gale, 4 Ch. D. 428. (r) Re Foulkes, Foulkes v. Hughes, 69 L. T. 183. (s) Thurstan v. Nottingham Building Soc., (1902) 1 Ch. 1, C. A.; aff. (1903) (t) Ibid.; Exp. Jones, Re Jones, 18 C. D. 109, C. A. (u) Foster v. Marchant, 1 Vern. 262. See Exp. Smith, 5 Ves. 556; Exp. Dikes, 8 Ves. 79; Re Halforde, 1 Jur. 524; Exp. Birch, 3 Swanst. 98. repealed by the Lunacy Regulation Act, 1853 (x). This Act provided that the Lord Chancellor might order that any estate or interest of a lunatic in land or stock either in possession, reversion, remainder, contingency, or expectancy, should be sold, or charged and encumbered by way of mortgage, for raising money for the payment of his debts or engagements, the discharge of incumbrances on his estate, and the costs of the commission of lunacy, and the costs of such disposition; the moneys so raised to be applied accordingly in such manner as the Lord Chancellor shall direct; and the Lord Chancellor might direct the committee to execute all necessary conveyances, &c., in the place of the lunatic. The surplus of the moneys so raised by mortgage or charge of land (y), was to be of the same nature and character as the estate from which it has been raised, and the Lord Chancellor was empowered to give orders for the due application of such moneys. This jurisdiction of the Lord Chancellor was extended to the Lords Justices of Appeal, and other judges entrusted with the care and commitment of the persons and estates of lunatics (). Chap. XX. § 4 (i). The Act of 1853, and its amending Acts, have been repealed Lunacy Act, by the Lunacy Act, 1890 (a), by sect. 117 of which it is enacted 1890, s. 117. as follows: raise money for certain purposes. "(1) The judge may order that any property of the lunatic, Power to whether present or future, be sold, charged, mortgaged, dealt with, or disposed of as the judge thinks most expedient for the purpose of raising or securing, or repaying with or without interest, money which is to be or which has been applied to all or any of the purposes following: (a) Payment of the lunatic's debts or engagements. (b) Discharge of any incumbrance on his property. (c) Payment of any debt or expense incurred for the lunatic's maintenance or otherwise for his benefit. "(d) Payment of or provision for the expenses of his future maintenance. "(2) In case of a charge or mortgage being made under this Act for the expenses of future maintenance, the judge may direct the same to be payable, either contingently if the interest charged is a contingent or future one, or upon the happening of the event if the interest is depending on an event which must happen, and either in (x) 16 & 17 Vict. c. 70, ss. 116139, amended 25 & 26 Vict. c. 86, ss. 13, 16; see Lunacy Regulation (Ireland) Act, 1871, s. 63; and see Lun. Ord. 96, 10 Feb. 1883. (y) As to the restriction of this provision to mortgages, &c. of land, see per Giffard, V.-C., in Jones v. Green, (z) Judicature Act, 1875 (38 & 39 (a) 53 Vict. c. 5. |