When an infant exercises his privilege and rescinds a sale of personal property made to or by him, the title and rights of the parties in the goods are restored to the original status, as if no sale had taken place. Thus if an infant while still a minor disaffirms a purchase made by him and restores the property, he cannot thereafter reclaim it on the ground that he avoids his disaffirmance.64 The disaffirmance is not regarded as a new contract of rescission or transfer of title by the infant, but rather as a destruction or wiping out of the original contract or transfer.65 If an infant acquires property which is subject to certain burdens, he can only avoid the burdens by giving up the property. Thus while he retains leased property he must pay the rent;66 and if he is a stockholder and retains his stock, he is liable for calls or assessments upon it.67
59Bennett v. McLaughlin, 13 111. App. 349; Robinaon v. Berry, 93 Me. 320, 45 Atl. 34; Drude v. Curtis, 183 Mass. 317, 87 N. E. 317, 62 L. R. A. 766.
60 Heath v. West, 28 N. H. 101. See also MacGreal v. Taylor, 167 U. S. 688, 17 S. Ct. 961, 42 L. Ed. 326; Ready p. Pinkham, 181 Mass. 351, 63 N. E. 887; United States Corp. v. Ul-rickson, 84 Minn. 14, 86 N. W. 613, 87 Am. St. Rep. 326; Uecker v. Koehn, 21 Neb. 559, 32 N. W. 583; Skinner v. Maxwell, 66 N. C. 45.
41 Ottman v. Moak, 3 Sandf. Ch. 431; Curtiss v. McDougal, 26 Ohio St. 66; Knaggs v. Green, 48 Wis. 601, 4 N. W. 760, 33 Am. Rep. 838. And see Weed v. Beebe, 21 Vt. 495. In Ross P. Cur-tice Co. v, Kent, 89 Neb. 496,131N. W. 944, an infant buyer under a conditional sale was held entitled to retain the goods until repaid the portion of the price which had been paid by him and to the return of which he had become entitled by disaffirming the transaction.
62Thus an infant who brought suit for breach of the contract of a telegraph company to transmit a telegram, was held bound by the stipulation that suit must be brought within sixty days. Western Union Tel. Co. v. Greer, 115 Tenn. 368, 89 8. W. 327, 1 L. R. A. (N. S.) 525. And similar stipulations in insurance policies have been held binding on an infant promisee, Mead v. Phoenix Ins. Co., 68 Kans. 432, 75 Pac. 475, 64 L. R. A. 79, 104 Am. St. Rep. 412, or beneficiary. O'Laughlin v. Union Central Life Ins. Co., 11 Fed. Rep. 280; Suggs v. Travelers' Ins. Co., 71 Tex. 579, 9 S. W. 676, 1 L. R. A. 847; Fey v. Independent Order, etc., Ins. Soc, 120 Wis. 358, 98 N. W. 206. An infant cannot avoid a single provision of a lease. Goin v. Cincinnati Realty Co., 200 Fed. 252, 118 C. C. A. 438.
63Ramadell p. Coombs Aeroplane Co., 161 N. Y. S. 360.
64Edgerton v. Wolf, 6 Gray, 453. But see Newry, etc., Ry. v. Coombe, 3 Ex. G66; Northwestern Ry. p. McMi-chael, 5 Ex. 114, 127. See also infra, Sec.260 ad fin.
65 "The disaffirmance of a contract made by an infant nullifies it and renders it void ab initio; and the parties are returned to the same condition as if the contract had never been made." Grissom v. Beidleman, 35 Okla. 343, 129 Pac. 863, 857, 44 L. R. A. (N. S.) 411. See also cases cited infra, Sec. 238, n. 68. Whether such a destruction of an infant's transfer of real estate by deed can be accomplished without a new transfer may be questioned. In McCarty v. Woodstock Iron Co., 92 Ala. 463, 8 So. 417, 12 L. R. A. 136, an infant grantee disaffirmed his purchase and the court held this did not divest his title but that the grantor could compel a reconveyance by bill
In Pippen v. Mutual Benefit Life Ins. Co., 130 N. C. 23, 40 S. E. 822, 57 L. R. A. 606, the administrator of an infant policy holder who had surrendered his policy of life insurance and received its cash surrender value sued for the face of the policy after the death of the insured. The court held the original contract had been destroyed on the principle stated in the text. It would seem, however, that the plaintiff's contention was sound that the surrender of the policy for its cash surrender value (not for the total premiums which the infant had paid) was the making of a new contract not a disaffirmance of the original one. Cf. Gonackey v. General Accident Fire & Life Assur. Corp., 6 Ga. App. 381, 66 S. E. 63; Lansing v. Michigan C. R. Co., 126 Mich. 663, 86 N. W. 147. In McCarty v. Wood-stock Iron Co., 92 Ala. 463, 8 So. 417, 12 L. R. A. 136, the court said of a disaffirmed contract: "The contract having been void cannot be revived, except by mutual consent."
66 Ketsey's Case, Cro. Jac. 320; Kir-ton v. Eliott, 2 Bulst. 89; Northwestern Ry. Co. v. M'Michad, 5 Exch. 114,123, 124. But see Flexner v. Dickerson, 72 Ala. 318.
67 Northwestern Railway Co. v. M'Michael, 5 Exch. 114. The infant, either before he becomes of age or within a reasonable time thereafter, may avoid liability by repudiating the transfer of stock to himself. See Cork, etc., Ry. v. Casenove, 10 Q. B. 936; Mitchell's Case, L. R. 9 Eq. 363; Ebbetts's Case, 6 Ch. App. 302.