Most of the disputed questions in the law of infancy turn upon the legal meaning of the word "voidable" as applied to an infant's acts. The natural meaning of the word imports a valid act which may be avoided, rather than an invalid act which may be confirmed, and the weight of authority as well as reason point in the same direction. Moreover, so far as executed transfers of property are concerned the authority of the decisions clearly supports this yiew.
Thus the deed of an infant it is universally agreed transfers a title though the title is voidable.19 So the indorsement of negotiable paper by an infant payee or indorsee transfers title; and, therefore, the infancy of the indorser is no defence to an action by the holder against the maker.20 As to executory contracts, a distinction sometimes has been taken, and the doctrine laid down that such bargains are wholly invalid until confirmed.21 This distinction has been severely criticised,22 and must be regarded as unfounded. Probably the courts which first adopted it meant little more than this: An executed sale transfers title and a transfer of title is an important thing even though it may be avoided; on the other hand an executory contract is only important if it is untimately performed or creates a liability for nonperformance. Now inasmuch as the performance of the contract by the infant or his liability for nonperformance are wholly dependent upon his own choice until and unless he ratifies the contract after coming of age, it seems accurate to say that there is until then no contract. But though the distinction is doubtless fine between no contract and a contract which the promisor may perform or not at his pleasure, it is of legal importance. In the case of a note or formal document this is obvious. If the note has no validity until confirmed it is hard to explain how it can
16 Latrobe v. Dietrich, 114 Md. 8, 78 Atl. 983.
17Motey v. Brine, 120 Mass. 324; Page v. Morse, 128 Man. 99. See also Conary v. Sawyer, 92 Me. 463, 43 Atl. 27, 69 Am. St. Rep. 524.
18Infants' Relief Act, 37 and 38 Vict., c. 62, Sec. 1.
19Zouch v. Parana, 3 Burr. 1794;
Irvine v. Irvine, 9 Wall. 617, 627, 19 L. Ed. 800; Manning v. Johnson, 20 Ala. 446,62 Am. Dec. 732; Beauchamp p. Bertig, 90 Ark. 351,119 S. W. 75, 23 L. R. A. (N. 9.) 659; Hastings p. Dol-larhide, 24 Cal. 195 (otherwise by statute if the minor was under eighteen, Hakes lnv. Co. v. Lyons, 166 Cal. 557, 137 Pac. 911); Kline v. Beebe, 6 Conn.
494; Soranton v. Stewart, 62 lnd. 68; Tunison v. Chamblin, 88 111. 378; Green v. Wading, 59 Iowa, 679,13 N. W. 761, 44 Am. Rep. 696; Vallandingham v. Johnson, 85 Ky. 288, 3 S. W. 173; Davis v. Dudley, 70 Me. 236, 35 Am. Rep. 318, 319; Ridgeley v. Crandall, 4 Md. 435; Kendall v. Lawrence, 22 Pick. 540; Allen v. Poole, 54 Miss. 323, 330; Ferguson v. Bell's Adm'r, 17 Mo. 347, 351; Parrish v. Tread way, 267 Mo. 91, 183 S. W. 580; Gillet v. Stanley, 1 Rill, 121; Lessee of Drake v. Ramsay, 5 Oh. 261, 253; Riley v. Padgett, 27 8. C. 300, 3 8. E. 468; Scott v. Buchanan, 11 Humph. 468; Cummings v. Powell, 8 Tex. 80; Birch v. Linton, 78 Va. 584,49 Am. Rep. 381; Gillespie v. Bailey, 12 W. Va. 70, 29 Am. Rep. 445.
So a transfer of personal property is valid until avoided. Roof v. Stafford, 7
Cow. 179; Johnson v. Packer, 1 Nott & McC. 1.
20 Grey v. Cooper, 3 Doug. 65; Jones v. Darch, 4 Price, 300; Taylor v. Crc-ker, 4 Esp. 187; Frasier v. Massey, 14 Ind. 382; Nightingale v. Withington, 15 Mass. 272, 8 Am. Dee. 101; Dulty v. Brownfield, 1 Pa. St. 497; Hardy v. Waters, 38 Me. 450; Neg. Inst. Law, Sec. 22 (infra, Sec. 1145). See also Hastings v. Dollarhide, 24 Cal. 195; Garner v. Cook, 30 Ind. 331; Murray v. Thompson, 136 Tenn. 118, 188 S. W. 578.
21Morton v. Steward, 5 111. App. 533, 535; Minock v. Shortridge, 21 Mich. 304, 315; Edmunds v. Mister, 68 Miss. 766; Edgerly v. Shaw, 25 N. H. 514, 516, 57 Am. Dec. 349; State v. Plaisted, 43 N. H. 413. But see Gillenwaters v. Campbell, 142 Ind. 529, 534, 41 N. E. 1041.
22 See the able note in 18 Am. St. Rep. 573, 679.
be negotiated, and similarly a covenant if it has any validity as such, must derive it from the sealing and delivery when it was made, not from a subsequent parol ratification. An agent's covenant on behalf of his principal can neither be authorized nor ratified except by a sealed instrument,22a and if an infant's covenant had no validity until ratified, that ratification also would have to be made under seal. But parol ratification may deprive the infant of a right to avoid his deed.23 Even in the case of simple contracts, though the matter is less obvious the same principle holds. If an infant's executory promise amounts to nothing until ratified it is impossible to see how it can be consideration for the counter-promise of an adult, but that it is so, was early and conclusively settled.24 Again, the defence to an infant's promise can be taken advantage of only by special plea.25 If that promise were wholly without validity this practice is not defensible. For other reasons, as will be seen from what follows, it is important to make the distinction in question.