Any act which clearly shows an intent to disaffirm a contract or sale is sufficient for the purpose. Thus a notice by the infant of his purpose to disaffirm,42 a resale of goods,43 a second conveyance of land previously sold or conveyed by him,44 or even a tender to another of goods previously in Hill v. Anderson, 13 Miss. 216; Downing v. Stone, 47 Mo. App. 144. Similarly in the ease of real estate. Harrod v. Myers, 21 Ark. 592, 76 Am. Dec 409; Barker v. Fuestal, 103 Ark. 312, 147 S. W. 45; Buchanan p. Hubbard, 96 Ind. 1; Jenkins v. Jenkins, 12 Iowa, 195, 200; Brantley p. Wolf, 60 Miss. 420; Oneida County Sav. Bank v. Saunders, 179 N. Y. App. D. 282, 166 N. Y. 8. 280; Jackson v. Beard, 162 N. C. 10S, 78 S. E. 6; Conn v. Boutwell, 101 Miss. 363, 68 So. 106; McMorris v. Webb, 17 S. C. 558, 43 Am. Rep. 629.
39Howard v. Simpkins, 70 Ga. 322; Murray p. Thompson, 136 Tenn. 118, 188 S. W. 578, L. R. A. 1917 B, 1172.
40This principle was carried so far in Gage v. Mencser (Tex. Civ. App.), 144 S. W. 717, as to allow an infant buyer to recover the money paid by him to the seller, from a bank to which the seller had transferred it in payment of a debt.
41 Sec. 24. See Williston on Sales, Sec. 348. The jurisdictions which have enacted this statute are enumerated infra, Sec. 506.
42Long v. Williams, 74 Ind. 115; Roberts v. Wiggin, 1 N. H. 73, 75, 8 Am. Dec. 38; Danziger v. Iron Clad Realty Co., 80 N. Y. Misc. 510, 141 N. Y. 8. 593.
43State v. Plaisted, 43 N. H. 413; Chapin v. Shafer, 49 N. Y. 407; State v. Howard, 88 N. C. 650. These were cases where an infant sold personal property which he had previously mortgaged.
44Frost v. Wolveston, 1 Stra. 94; Tucker v. Moreland, 10 Pet. 58, 9 L. Ed. 345; Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659; Hastings v. Dollarhide, 24 Cal. 195; Harris p. Cannon, 6 Ca. 382; Losey v. Bond, 94 Ind. 67, 70; Valland-ingham v. Johnson, 86 Ky. 288,3 S. W. 173; Corbett v. Spencer, 63 Mich. 731, 30 N. W. 385; Norcrum p. Sheahan, 21 Mo. 25, 64 Am. Dec. 214; Dawson p. Helmes, 30 Minn. 107, 14 N. W. 462; Jackson v. Burchin, 14 Johns. 123; Cresinger v. Welch's Lessee, 15 Ohio, 156, 45 Am. Dec. 565; Tolar v.. Marion County Lumber Co., 93 S. Car. 274, 75 S. E. 546. But in order to have this effect, the second conveyance must be sold by him,45 or a plea of infancy in an action upon the infant's obligation,46 is sufficient. An action to recover goods transferred is, however, probably insufficient without previous demand or other indication of disaffirmance,47 though a sale voidable for fraud may be thus avoided.48 That case may be distinguished on the ground that the fraud is itself a wrong, and if a remedy is practically convenient and gives effectual relief, a wrongdoer should not be heard to complain. If the infant is himself sued on his contract, a plea of infancy is a sufficient disaffirmance.49 There are some expressions in the old books to the effect that an act of disaffirmance must be of as high and solemn a nature as the act disaffirmed 50 - a doctrine particularly appropriate to feoffments and deeds, but this is not inconsistent, with the drat. Therefore, a subsequent mortgage does not necessarily avoid a prior one, McGan v. Marshall, 7 Humph. 121; and a quitclaim deed of an estate does not avoid a prior mortgage. Singer Mfg. Co. v. Lamb, 81 Mo. 221. Bee also Tolar v. Marion County Lumber Co., 93 S. C. 274, 75 S. E. 546. Though a warranty deed would do so. Dixon v. Merritt, 21 Minn. 106; Allen v. Poole, 54 Miss. 323.
45Hoyt v. Wilkinson, 57 Vt. 404.
46Sparr v. Florida Southern Ry., 25 Fla. 185, 6 So. 60; Strain v. Wright, 7 Ga. 568; Schrock v. Crawl, 83 Ind. 243;Freeman v. Nichols, 138 Mass 313, 314.
47 It is the prevailing though not uniform rule in regard to real estate conveyed by an infant that he may bring ejectment or other proceeding to regain possession without previous demand. 18 Am. St. Rep. 667, 668; Smith v. Ryan, 191 N. Y. 462,84 N. E. 402, 19 L. R. A. (N. S.) 461. So in Stack v. Cavanaugh, 67 N. H. 149,166, 30 Atl. 350, an action for the recovery of money, the action was held main-tainable without previous demand. And an infant was allowed to disaffirm a release given by him by merely bringing an action on the claim released in St. Louis, etc., Ry. v. Higgins, 44 Ark. 293. But in Belts v. Carroll, 6 Mo. App. 518, it was held that replevin of personal property would not lie unless there had been some act of disaffirmance before the action. This decision is questioned in 18 Am. St. Rep. 668, but as to actions sounding in tort it seems sound on principle and reasonable from a practical standpoint. An action of tort should not lie until a tort has been committed; and until the disaffirmance by the infant retention of the property is not wrongful. It is anomalous if bringing the action itself gives rise to the cause of action, or an essential element of it. Nor should the fiction of relation be pressed so far as to enable the infant to make the defendant a tort-feasor in the past. See Drude v. Curtis, 183 Mass. 317, 67 N. E. 317,62 L. R. A. 755.
48 See infra, Sec. 1525.
49Schrock v. Crowl, 83 Ind. 243; Freeman v. Nichols, 138 Mass. 313, 314; Yeager v. Knight, 60 Miss. 730.
50See also Tucker v. Moreland, 10 Pet. 58, 9 L. Ed. 345; Irvine v. Irvine, 9 Wall. 617, 19 L. Ed. 800.
the modem law. An act of disaffirmance requires no special form.51