The disaffirmance or ratification must go to the whole contract-An infant cannot ratify a part which he deems for his benefit, and repudiate the rest.58 He cannot, for instance, ratify a lease to himself, and avoid a covenant in it to pay rent; nor can he hold lands conveyed to him in exchange, and avoid the transfer of those with which he parted;59 nor can he hold land conveyed to him, and repudiate a mortgage given at the time as part of the same transaction to secure the purchase money.60
56 Clark v. Tate, 7 Mont 171, 14 Pac. 761; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. Rep. 569; Philips v. Green, 3 A. K. Marsh. (Ky.) 7, 13 Am. Dec. 124; Stotts v. Leonhard, 40 Mo. App. 336; Scott v. Buchanan, 11 Humph. (Tenn.) 469; Hughes' v. Watson, 10 Ohio, 134. Where, however, the action is based on the assumption that defendant is wrongfully in possession, as in the case of ejectment, the weight of authority seems to require that there shall have been some previous act of disaffirmance on the part of the infant, for until disaffirmance defendant is rightfully in possession. See Law v. Long, 41 Ind. 586; McClanahan v. Williams, 136 Ind. 30, 35 N. E. 897; Bool v. Mix, 17 Wend. (N. Y.) 135, 31 Am. Dec. 285; Clawson v. Doe, 5 Blackf. (Ind.) 300; Wallace's Lessee v. Lewis, 4 Har. (Del.) 75. See "In-fonts," Dec. Dig. (Key-No.) §§ 81, 57; Cent. Dig. §§ 41-63, 149-160.
57 McCarty v. Iron Co., 92 Ala. 463, 8 South. 417, 12 L. R. A. 136. And see note 55, supra. See "Infants," Dec. Dig. (Key-No.) § 31; Cent. Dig. §§ 41-63.
58 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Bigelow v. Kinney, 3 Vt 353, 21 Am. Dec. 589; Lowry v. Drake's Heirs, 1 Dana (Ky.) 46. Cf. O'Rourke v. Insurance Co., 23 R. I. 457, 50 Atl. 834, 57 L. R. A. 496, 91 Am. St. Rep. 643. See "Infants," Dec. Dig. (Key-No.) §§ 30, 31; Cent. Dig. §§ 1,1-63.
59 Buchanan v. Hubbard, 119 Ind. 187, 21 N. E. 538. See "Infants," Dec. Dig. (Key-No.) §§ SO, 31; Cent. Dig. §§ .41-63.
60 Hubbard v. Cummings, 1 Greenl. (Me.) 11; Uecker v. Koehn, 21 Neb. 559, 32 N. W. 583, 59 Am. Rep. 849; Bigelow v. Kinney, 3 Vt. 353, 21 Am
As a rule, a person cannot retain property purchased by him during infancy, and repudiate the contract under which he received it; nor can he disaffirm a sale by him, and retain the consideration received; but as to this there is much conflict, and we must go into the subject at some length.
110. An infant may disaffirm his executory contract without first returning the consideration he has received; but after disaffirmance he must return the consideration, if he has it.
111. If the contract has been executed by him, he cannot avoid it, and recover what he has paid, or for what he has done, without returning the consideration if he has it; but, by the weight of authority, if he has squandered or otherwise disposed of it during his minority, it is otherwise.
EXCEPTIONS - (a) Though the infant has the consideration, he may effectually disaffirm his executed contract without its return as a condition precedent, if he doe's not affirmatively seek relief; as, for instance, where he disaffirms his conveyance of land by conveying to another.
(b) Some courts hold that an infant cannot recover what he has paid, or for what he has done, under a contract by which he has received a substantial benefit, unless he can and does place the other party in statu quo. This probably does not apply to his conveyances of land.
As we have just stated, when a person avoids a contract made by him during his minority, he must, as a rule, return the consideration he has received.61 As to whether or not he must do so as a condition precedent to disaffirmance, or whether the other party mustbe left to his action to recover the consideration after disaffirmance, and as to whether the consideration must be returned where it has been wasted or otherwise disposed of, the decisions are conflicting.
Dec. 589; Heath v. West, 28 N. H. 108; Young v. McKee, 13 Mich. 556; Skinner v. Maxwell, 66 N. C. 45; Cogley v. Cushman, 16 Minn. 402 (Gil. 354); Callis v. Day, 38 Wis. 643; Ready v. Pinkham, 181 Mass. 351, 63 N. E. 887. Cf. Nottingham, etc., Soc. v. Thurston, 19 L. T. R. 54 (H. L.). See "Infants," Dec. Dig. (Key-No.) §§ SO, 31; Cent. Dig. §§ 41-68.
61 Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Riselow v. Kinney, 3 Vt. 353, 21 Am. Dec. 589; Wilhelm v. Hardman, 13 Md. 140; Mustard v. Wohlford's Heirs, 15 Grat. (Va.) 329, 76 Am. Dec. 209; Combs v. Hawes (Cal.) 8 Pac 597 (statutory); Kitchen v. Lee, 11 Paige (N. Y.) 107, 42 Am. Doc 101; Bartlett v. Cowles, 15 Gray (Mass.) 416. See "Infants," Dec. Dig. (Key-No.) §§ 31, 58; Cent. Dig. §§ 59, 157.
(a) Where the contract is executory on the part of the infant, and he has not ratified it by his conduct, as explained above,62 it cannot, according to the weight of authority, be enforced against him, even though he retains the consideration received by him in kind. He need not return the consideration as a condition precedent to repudiating the contract and pleading his infancy in an action brought against him to enforce it.63 When he repudiates his contract, however, he no longer has any right to the consideration he has received, and at least, if he has it, the other party may maintain an action to recover it.6* According to the weight of authority, if he has disposed of the consideration so that he cannot return it in kind, he cannot be held liable for it. The adult is remediless.65 It must be remembered that retaining the consideration may amount to a ratification.
(b) Where the contract is executed on the part of the infant, and he has the consideration received by him in kind, many cases hold that he cannot repudiate the contract, and recover what he has parted with, unless he returns, or offers to return, the consideration.68 Many cases, on the other hand, go to the extent of saying without qualification that the return of the consideration in such a case is not a condition precedent to the right to disaffirm and recover what has been parted with; although, if the infant still retains the consideration, the adult may reclaim it, or, upon