169 Neb. 710, 100 N.W.2d 770 (1960)
Mildred R. Smith commenced this equity action in her own behalf and as next friend of her husband Ralph Smith, a minor, against Lynn R. Wade and Naomi Wade.1 The plaintiffs sought to have declared null and void a real estate mortgage dated July 9, 1956, for $3,256.23 on described property in Keith County, Nebraska, together with any promissory notes or indebtedness secured by it.2
The plaintiffs alleged that Ralph Smith was under the age of 21 years when the mortgage was signed, that the mortgaged real estate was their homestead, that the mortgage was procured by threats and duress, and that it was without valid consideration.3 They further claimed that the mortgage was repudiated by Ralph Smith.4
The defendants answered by admitting execution of the mortgage and pleading that seven notes were executed along with it for the total amount.5 They alleged that $794.62 represented necessaries of life furnished by Lynn R. Wade to the plaintiffs, that part of the amount was procured by fraud of Ralph Smith, and that the real estate was owned solely by Mildred R. Smith.6 The defendants also filed a cross-petition for declaratory judgment on the validity of the instruments.7
After trial the district court rendered a decree finding Ralph Smith to be a minor and that part of the amount was for necessaries of life.8 The court upheld the notes and real estate mortgage as valid and enforceable according to their terms against the plaintiffs.9 The plaintiffs' motion for new trial was overruled, and they appealed to the Supreme Court of Nebraska.10
The account underlying the notes consisted of charges for merchandise sold in the retail motor fuels business, amounts from the cash register, shortages in station merchandise, checks which did not clear, and the sale price of an automobile for $750 that had been returned to the defendants.11 None of the items was identified as necessaries for the plaintiffs.12 The record contained evidence both supporting and contradicting the claim that the notes and mortgage were procured by duress, and the mortgaged property was the homestead of the plaintiffs.13
Whether a minor may repudiate a contract before attainment of majority?14
A minor has the right and power to avoid his personal contracts during his minority, as established by longstanding precedent in this jurisdiction.15
Yes. The established facts identify Ralph Smith as a minor under the age of 21 at the time the mortgage and notes were executed on July 9, 1956.16 The plaintiffs commenced the equity action through Mildred R. Smith as next friend to repudiate those instruments on the ground of infancy.17
The record shows that Ralph Smith exercised that right of repudiation before reaching majority.18 Under the rule that an infant may avoid personal contracts during minority, this repudiation is effective and binding.19
Ralph Smith had the right and power during his minority to and that he did so avoid the mortgage and notes in question.20
Whether a minor may repudiate a mortgage on the homestead of the parties thereby invalidating the mortgage?21
If a mortgage on the homestead becomes void as to one spouse because of repudiation, it becomes void for all purposes under the statute requiring execution and acknowledgment by both husband and wife.22
Yes. The established facts confirm that the mortgaged real estate was the homestead of the plaintiffs within the statutory meaning of the house and land where the family dwells.23 Ralph Smith repudiated the mortgage during his minority, leaving only the signature of his adult wife Mildred R. Smith.24
The statute provides that the homestead of a married person cannot be conveyed or encumbered unless the instrument is executed and acknowledged by both husband and wife.25 With the mortgage void as to Ralph Smith, it is void in its entirety.26
The district court was therefore in error in refusing to find and decree that the mortgage in question is void and in refusing to quiet title to the real estate in plaintiffs as prayed by them.27
Whether a mortgage on a homestead to secure notes for necessaries of life signed by a minor husband and his adult wife may be repudiated by the husband?28
No. The established facts show that the account underlying the seven notes consisted of charges for merchandise sold in the retail motor fuels business, amounts from the cash register, shortages in station merchandise, checks which did not clear, and the sale price of an automobile for $750 that had been returned to the defendants.31 None of the specific items was identified as being devoted to the necessaries of Ralph Smith or his family.32 Because the record discloses a lack of sufficient evidence to sustain a finding that the notes were given in lieu of cash payment for necessaries, the court does not reach the question of repudiation in that context.33
The court does not pass upon the question of whether or not the signature of Ralph Smith could be repudiated if it were proved that the mortgage was given to secure notes given for necessaries of life.34 It holds only that there was a lack of sufficient evidence to sustain a finding that the notes were given in lieu of cash payment for necessaries.35
Whether the repudiation of the notes by Ralph Smith was valid?36
When notes form part of a mortgage transaction that is rescinded because of the minor's repudiation, the notes are likewise void as to the minor.37
Yes. The established facts establish that the seven promissory notes totaling $3,256.23 were executed along with the mortgage on the homestead and were part of the same transaction.38 Because Ralph Smith validly repudiated the mortgage during his minority, the notes executed as part of that transaction are rescinded along with the mortgage.39 The district court therefore erred in failing to adjudicate that the notes are void as to Ralph Smith.40
For reasons which are apparent, the notes being a part of the mortgage transaction and being rescinded along with the mortgage, the district court was also in error in failing and refusing to adjudicate that as to Ralph Smith the notes are also void.41
Whether the mortgage and notes were void because they were procured by duress?42
In an equity action the Supreme Court will, in determining the weight of evidence which is in irreconcilable conflict on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying.43
No. The established facts indicate that the record contained evidence both supporting and contradicting the claim that the notes and mortgage were procured by duress.44 Because the evidence stands in irreconcilable conflict, the court defers to the trial court's opportunity to observe the witnesses.45 On that basis the determination is made that the notes and mortgage were not executed under duress.46
In the light of this rule the conclusion is reached that the notes and mortgage were not executed under duress.47