Generally speaking nemo dat quod non habet and only a person having the legal estate and having capacity to transfer property can make a legal mortgage. In order to render the mortgagor personally liable upon the covenants contained in a mortgage he or she must have also the capacity to contract.

All persons under the age of twenty-one years are infants in law. The purchase of land by an infant is voidable at his option, that is, he may disagree thereto within a reasonable time after coming of age, and so may his heir, if he dies while the purchase is still voidable; but it remains good until set aside. The conveyance of land by an infant is, as a rule, similarly voidable (c). In England, however, by the effect of the Infants' Relief Act, 1874, the conveyance by an infant of lands or goods by way of mortgage to secure the repayment of money lent to him is absolutely void (d). In Ontario the mortgage of an infant would fall within the general rule, that is. it is voidable merely and will be binding on the infant unless disaffirmed by him within a reasonable time after his arriving of age (e), but it has been held that a bond, with a penalty, executed by an infant, is void and cannot be ratified by the obligor after his coming of age (f).

(b) Seeley v. Caldwell, 1908, 18 O.L.R. 472; Crane v. Hoffman, 1916, 35 O.L.R. 412.

(c) Williams, Real Property, 21st ed., p. 296; cf. Armour, Real Property, 2nd ed., pp. 317-8.

(d) Nottingham Permanent Benefit Society v. Thurston, [1903] AX. 6, [1902] 1 Ch. 1, at pp. 9, 13.