102. Executory contracts, or executed contracts relating to personalty, may be avoided by an infant either before or after attaining his majority; but conveyances of land cannot be disaffirmed during minority, though he may enter and take the profits.
103. As a rule, mere lapse of time after attaining his majority will not bar an infant's disaffirmance of his executory contract, but in a few states he is required to disaffirm within a reasonable time.
104. As a rule, executed contracts must be disaffirmed within a reasonable time after attaining majority; but in some states it is held that the right to avoid a conveyance of land is not barred by acquiescence for any period short of that prescribed by the statute of limitations.
An infant's executory contract may be avoided by him at any time, either before or after attaining his majority, by refusing to perform it, and pleading his infancy when sued for breach of the contract.26
In the case of executed contracts a distinction is made between contracts relating to his land and those relating to his personalty. A deed of land executed by an infant cannot be disaffirmed during his minority. He may enter on the land and take the profits until the time arrives when he has the legal capacity to affirm or disaffirm the deed; but the deed is not rendered void by the entry. It may still be affirmed after he reaches his majority.27
26 Reeves, Dom. Rel. 254; RICE v. BOYER, 108 Ind. 472, 9 N. E. 420. 53 Am. Rep. 53; Throckmorton, Cas. Contracts, 143; Adams v. Beall, 67 Md. 53, 8 Atl. 6G4, 1 Am. St*. Rep. 379; Ross P. Curtice Co. v. Kent, 89 Neb. 490, 131 N. W. 944. An infant may avoid his contracts for personal services during his minority. Vent v. Osgood, 19 Pick. (Mass.) 572; Ray v. Haines, 52 I11. 485; Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379; Gaffney v. Hayden, 110 Mass. 137, 14 Am. Rep. 5S0; Vehue v. Pinkham, 60 Me. 142; Whitmarsh v. Hall, 3 Denio (N. Y.) 375. See "Infants;' Dec. Dig. (Key-No.) , § 58; Cent. Dig. §§ 149-160.
27 Welch v. Bunce, 83 Ind. 382; Zouch v. Parsons. 3 Burrows, 1794; Irvine v. Irvine, 5 Minn. 61 (Gil. 44); Hastings v. Dollarhide, 24 Cal. 195; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285; McCormic v. Leggett, 53 N. C. 425; Stafford v. Roof, 9 Cow. (N. Y.) 626; Baker v. Kennett, 54 Mo. 88. An infant, however, may, before attaining his majority, plead infancy in a suit to foreclose a mortgage on land. Schneider v. Staihr, 20 Mo. 269. See "Infants," Dec. Dig. (Key-No.) § 81; Cent. Dig. §§ 41, 1,6, 50-63.
The rule, however, does not apply to a sale and manual delivery of chattels by an infant. Such a contract may be avoided by him while he is still an infant.28 In a New York case it was said: "The general rule is that an infant cannot avoid his contract, executed by himself, and which is therefore voidable only, while he is within age. He lacks legal discretion to do the act of avoidance. But this rule must be taken with the distinction that the delay shall not work unavoidable prejudice to the infant, or the object of his privilege, which is intended for his protection, would not be answered. When applied to a sale of his property, it must be his land; a case in which he may enter and receive the profits until the power of finally avoiding shall arrive. * * * Should the law extend the same doctrine to sales of his personal estate, it would evidently expose him to great loss in many cases, and we shall act up to the principle of protection much more effectually by allowing him to rescind while under age, though he may sometimes misjudge, and avoid a contract which is for his own benefit. The true rule, then, appears to me to be that, where the infant can enter and hold the subject of the sale till his legal age, he shall be incapable of avoiding till that time; but where the possession is changed, and there is no legal means to regain and hold it in the meantime, the infant, or his guardian for him, has the right to exercise the power of rescission immediately."29
The rule is very general, almost universal, that an infant may avoid any contract in relation to his personal property before he is of age.30 Some courts have held that he cannot disaffirm a partnership agreement during his minority, so as to recover what he has
28 Stafford v. Roof, 9 Cow. (N. Y.) 626; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285; Zouch v. Parsons, 3 Burrows, 1794; Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379; Shipman v. Horton, 17 Conn. 481; Riley v. Mallory, 33 Conn. 207; Willis v. Twambly, 13 Mass. 204; Carr v. Clough,
26 N. H. 280, 59 Am. Dec. 345; Chapin v. Shafer, 49 N. Y. 407; Towle v. Dresser, 73 Me. 252; Hoyt v. Wilkinson, 57 Vt. 404; Carpenter v. Carpenter, 45 Ind. 142; Cogley v. Cushman, 16 Minn. 397 (Gil. 354); Price v. Furman.
27 Vt. 268, 65 Am. Dec. 194. See "Infants," Dec. Dig. (Key-No.) § 58; Cent. Dig. §§ 149-160.
29 Stafford v. Roof, supra. See "Infants,"' Dec. Dig. (Key-No.) § 31; Cent. Dig. §§ 41, 46, 50-63.
30 See Shirk v. Shultz, 113 Ind. 571, 15 N. E. 12 (collecting cases); RICE v. BOYER, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53, Throckmorton, Cas. Contracts, 143; Hoyt v. Wilkinson, 57 Vt. 404; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194; Willis v. Twambly, 13 Mass. 204; Stafford v. Roof, 9 Cow. (N. Y.) 628; Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285; Petrie v. Williams, 68 Hun, 589, 23 N. Y. Supp. 237; Cogley v. Cushman, 16 Minu. 307 (Gil 354); Wuller v. Chuse Grocery Co., 241 I11. 398, 89 N. E. 796, 28 L. R. A. (N. S.) 128, 132 Am. St. Rep. 216, 16 Ann. Cas. 522. Contra: Lansing put into the firm but must wait until he attains his majority.81 Other courts hold the contrary, on the ground that it is a contract in relation to his personalty, and that all contracts of an infant in relation to personal property may be disaffirmed during his minority.32
As to whether a contract must be disaffirmed by an infant within a reasonable time after he attains his majority, the authorities are conflicting. In the case of executory contracts requiring ratification to render them binding, the right to avoid them cannot be barred by mere silence, without more. It may be otherwise where the circumstances are such as to make it the infant's duty to speak, for in such a case silence or acquiescence may amount to a ratification.83
In the case of conveyances of land, sales and delivery of chattels, and the like, many courts hold that the infant must disaffirm the contract within a reasonable time after he attains his majority, or be held to have ratified it, and to be barred from avoiding it.34 Many courts, however, have held that a conveyance of land by an infant need not be disaffirmed within any period short of that prescribed by the statute of limitations, and that acquiescence for any shorter time will not bar his right to avoid it.85
v. Railroad Co., 126 Mich. 663, 86 N. W. 147, 86 Am. St. Rep. 567. And see Pippen v. Insurance Co., 130 N. C. 23, 40 S. E. 822, 57 L. R. A. 505. See "Infants;' Dec. Dig. (Key-No.) § 58; Cent. Dig. §§ 11,9-160.
31 Dunton v. Brown, 31 Mich. 182; Armitage v. Widoe. 36 Mich. 130; Bush v. Linthicum, 59 Md. 344 (but see Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379). See "Infants," Dec. Dig. (Key-No.) § 58; Cent. Dig. §§ 149-160.
32 Shirk v. Shultz, 113 Ind. 571, 15 N. E. 12 (collecting cases); Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St Rep. 379. See "Infanta," Dec. Dig. (Key-No.) § 58; Cent. Dig. §§ 149-160.
33Ante, p. 201; post, p. 210.
34Delano v. Blake, 11 Wend. (N. T.) 85, 25 Am. Dec. 617; Goodnow v. Empire Lumber Co., 31 Minn. 468, 18 N. W. 283, 47 Am. Rep. 798 (collecting the cases pro and con); Bigelow v. Kinney, 3 Vt. 353, 21 Am. Dec. 589; Dolph v. Hand, 156 Pa. 91, 27 Atl. 114, 36 Am. St. Rep. 25; Amey v. Cockey, 73 Md. 297, 20 Atl. 1071; Ihley v. Padgett, 27 S. C. 300, 3 S. E. 468; Sanders v. Bennett (Ky.) 1 S. W. 436; Scott v. Buchanan, 11 Humph. (Tenn.) 468; Aldrich v. Funk, 48 Hun, 367, 1 N. Y. Supp. 543; Ward v. Laverty, 19 Neb. 429, 27 N. W. 393; Thormaehlen v. Kaeppel, 86 Wis. 378, 56 N. W. 1089; Kline v. Beebe, 6 Conn. 506; Clemmer v. Price (Tex. Civ. App.) 125 S. W. 604 (conveyance of land to infant). An infant's delay of less than sis months after majority in avoiding a deed of land, with knowledge that purchasers from his grantee are making improvements, does not estop him. Rundle v. Spencer, 67 Mich. 189, 34 N. W. 54S. See "Infants," Dec. Dig. (Key-No.) §§ 31, 58; Cent. Dig. §§ 1,1, 1,6, 50-63, 149-160.
35 Drake's Lessees v. Ramsay, 5 Ohio, 251; Prout v. Wiley, 28 Mich. 164; Lacy v. Pixler, 120 Mo. 383, 25 S. W. 206; Sims v. Everhardt, 102 U. S. 300,
It is provided by statute in some states that an infant is bound on all his contracts unless he disaffirms them within a reasonable time.36
105. In some jurisdictions, by statute, ratification of a contract by an infant must, subject to specified exceptions, be in writing, signed by him or his agent.
106. In the absence of such a provision, ratification may be by an express new promise, orally or in writing; or it may be implied from declarations or conduct clearly showing an intention to be bound.
107. The promise must be made or the acts done by the infant understandingly, but the cases are in conflict as to whether knowledge of the legal right to avoid the contract is necessary.