[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 25 The infancy of the defendant at the time of the alleged undertaking upon which the action is based, appears by the record as found by the judge at the trial upon the evidence. The obligation was therefore voidable at her option, and the action cannot be maintained unless ratified and affirmed after she attained her majority; and the onus of showing such ratification was upon the plaintiff. A continuance in possession of the premises, the conveyance of which constituted the consideration of her contract, and a sale of the same by her after she became of age, would have been an affirmance of the transaction by which she acquired the title, and entitled the plaintiff to recover in the action. (Lynde v. Budd, 2 Paige, 191; Henry v. Root,33 N.Y., 526: Bryden v. Bryden, 9 Met., 519.)
So, too, the retention of the property, and an omission to disaffirm within a reasonable time after arriving at the age of twenty-one years, would have operated as an affirmance of the contract, and been an answer to the defence of infancy. (Kline v. Beebe, 6 Conn., 494; Cecil v. Salisbury, 2 Vernon, 324.) An infant will not be permitted to retain property purchased by her, and at the same time repudiate the contract of purchase. (Kitchen v. Lee, 11 Paige, 107.) But in this case, although the fact of infancy at the time of the alleged contract is expressly found, which entitled the defendant to a judgment, unless by some act, after she became of *Page 27 age, she had ratified and affirmed the contract, no such act is found. The affirmance of the contract, as suggested, was a fact to be proved by the plaintiff, and to be affirmatively found by the judge, to avoid the defence of infancy clearly established. While every intendment will be in support of a judgment, and nothing will be taken by inference against it upon appeal, this court cannot infer or assume the existence of a fact lying at the foundation of the action, in the absence of any finding upon the subject, or evidence warranting such a finding. Omissions and defects in a finding may be supplied by inference, but not the entire want of finding, in the absence of evidence of the necessary fact appearing in the case. This defence of infancy is established by the decision and findings of the judge, with no fact in avoidance of it. It is true that the judge, as "a conclusion of law, finds that the acts of the defendant, after reaching the age of twenty-one years, were a ratification of the obligation," etc. But he does not find any act to have been performed by her after that period, except the appearance by an attorney in the action to foreclose the mortgage; nor does he find that by her acts she ratified the contract after becoming of age, even if such finding, without specifying the particular acts relied upon, would have been sufficient; and neither the evidence or the findings and statements of the judge show that the defendant had attained her majority at the time of the sale of the premises by her. Indeed, the inference from the case is rather adverse to such a conclusion. A possession or retention of the fruits of her sale after she became twenty-one years of age, if such fact was clearly established, was not an act in affirmance of the contract with the plaintiff's testator. It was not the exercise of any control over the property conveyed. A tender of payment by her to her grantor, or his representatives, of the moneys received by her, would not have been a disaffirmance of the contract.
The appearance in the foreclosure suit was not an act tending to ratify her obligation. She was not called upon to interpose the defence of infancy in that action. It would *Page 28 have been unavailing for any purpose. The question could not have been tried, and was not material to any issue that could have been formed there.
The judgment must be reversed and a new trial granted, costs to abide the event.
All the judges concurring, judgment reversed and new trial ordered.