By the Court,
J. F. Barnard, J.It is now established that the contracts of an infant are voidable only, and not void, and are subsisting liabilities, requiring, however, ratification after such infant becomes twenty-one, to be enforced. (Henry v. Root, 33 N. Y. Rep. 526.) The defendant, while an infant, took a conveyance from Edward A. "Walsh, of certain lands in Hew "York, on.which there was, at the, time of the conveyance by Walsh to her, a mortgage given by Walsh to Samuel Whitehead. This mortgage was deducted from the purchase price of the land, and the defendant, as part pf the price, ■ agreed to pay Whitehead the amount thereof. Subsequently, and" while still under age, the defendant conveyed the premises, at a considerably advanced price, to John Brouwer, deducted the same mortgage from the consideration, and Brouwer, in like manner as she had done, agreed to pay such mortgage. The mortgage was not paid, and White*555head foreclosed. Walsh, the defendant, and Brouwer were defendants in the foreclosure suit. The defendant was then of full age. She appeared by attorney, but put in no answer. Judgment was entered in the foreclosure suit as if she had been an adult during the whole transaction. She might have spoken; she was silent, and permitted the rights of the parties to be passed upon and determined as if she was a person capable of conveying and receiving a conveyance. If there had been a surplus upon the foreclosure sale, the defendant’s grantee would have been entitled to it.
If she then had repudiated her purchase from Walsh, and her sale to Brouwer, all the parties were before the court, and Walsh could have been protected. By her suffering the foreclosure complaint to be taken as confessed by her, she determined that the act done by her'in infancy should stand. She and Brouwer were made defendants, as grantees subsequently to Whitehead’s mortgage.
It is too late, after she takes her chance for the surplus, or permits her grantee to have a right to the surplus, as if the conveyances were good, to set up this defense of infancy to escape the payment of a deficiency.
The judgment should be affirmed, with costs.