(dissenting.) The learned judge who tried this action without a jury has found, as a fact, that the defendant was an infant at the time she received the deed containing the assumption and agreement on her part to pay the amount secured by the mortgage in question, "and that she had not attained full age at the time of the conveyance subsequently executed and delivered by her to John Brouwer, of the property covered by the mortgage, and referred to in his findings of fact. Consequently that conveyance cannot operate as an affirmance or satisfaction of the original assumption and agreement; and I do not find any promise, declaration or acts by her after *556she became of- full age, by which she agreed to ratify that contract, or which in any manner import a recognition or confirmation of it. The naked fact, found by the judge, that she was made a party to the action for the foreclosure of the mortgage, and appeared therein by her attorney; that a sale was had under the judgment therein, for a price insufficient to pay the amount due thereon; and that the plaintiff’s assignor subsequently paid the deficiency' or balance that remained due, in pursuance of the direction and requirement of that judgment, is not sufficient. It does not appear that any answer was put in for her, or that any act whatever, except such appearance, was done by her or her attorney, in that action. Nor is it found that the fact of such assumption or agreement was alleged in the complaint; and as the liability of her grantor to satisfy and discharge the deficiency arose out of his personal obligation to pay the mortgage, there was no necessity of setting out any of the contents of the deed made' by him to her, and it will not be assumed that they were. There was therefore not even an admission by the defendant, assuming that she suffered judgment to pass by default, of the execution and delivery of that deed to her.
[King’s General Term, December 14, 1868.Under such circumstances, the defendant was not legally liable on her promise.
The judgment against her should therefore be reversed, and a new trial ordered; costs to abide the event.
Judgment affirmed.
Lott, J. F. Barnard, Gilbert and Tappen, Justices.]