This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A supplement to the original Common Law rule already given was the rule originally laid down in conveyancing that grants made by an infant which did not take effect by delivery by his hand were void.1 This rule survives in modified form and in many, perhaps the majority of jurisdictions, a power of attorney for the conveyance of real estate executed by an infant is said to be absolutely void.2 The true meaning of this rule is of course that no rights of any sort pass under a deed delivered as an execution of such power. Many of these decisions would have resulted the same way if the power had been merely voidable. In others, it is purely obiter, not being called for in the least by the facts of the case.3 In the rest, however, the point is clearly and necessarily involved in the decision. The more rational view of an infant's power of attorney is that it is voidable and not void. Under our theory of the transfer of estates in realty there can be no logical distinction between delivery by the hand of the infant and by the hand of his agent. Accordingly some courts have held that a power of attorney given by an infant was merely voidable, and might be ratified by him on arriving at majority.4 The validity of a power coupled with an interest, as one inserted in a mortgage, is also an unsettled question.5 Powers of attorney other than those for the conveyance of real estate have been said to be void.6 Thus an infant cannot appoint an attorney to make affidavit for him in replevin.7 The more rational view is to look upon the power and the acts thereunder as being merely voidable.8
1 Perkins on Conveyancing, Sec. 12; Zouch v. Parsons, 3 Burr. 1794; Allen v. Allen, 2 Dru. & War. 307; Doe v. Roberts, 16 M. & W. 778; Phillips v. Green, 3 A. K. Marsh. (Ky.) 7; 13 Am. Dec. 124; Breck-enridge's Heirs v. Ormsby, 1 J. J. Marsh. (Ky.) 236; 19 Am. Dec. 71; Dana v. Coombs, 6 Me. 89; 19 Am. Dec. 194; Conroe v. Birdsall, 1 Johns. Cas. (N. Y.) 127; 1 Am. Dec. 105.
2 Zouch v. Parsons, 3 Burr. 1794; Flexner v. Dickerson, 72 Ala. 318; Philpot v. Bingham, 55 Ala. 435; Waples v. Hastings. 3 Harr. (Del.) 403: Hiestand v. Kuns, 8 Blackf. Ind. 345; 46 Am. Dec. 481; Pyle v. Cravens, 4 Litt. (Ky.) 18; Lawrence v. McArter, 10 Ohio 37; Knox v. Flack, 22 Pa. St. 337.
3 Cole v. Pennoyer, 14 111. 158; Fairbanks v. Snow, 145 Mass. 153; 1 Am. St. Rep. 446; 13 N. E. 596; Mustard v. Wohlford's Heirs, 15 Grattan (Va.) 329; 76 Am. Dec. 209.
4 Coursolle v. Weyerhauser, 69 Minn. 328; 72 N. W. 697; Ferguson v. Ry. Co., 73 Tex. 344; 11 S. W. 347.
5 In Askey v. Williams, 74 Tex. 294; 5 L. R. A. 176; 11 S. W. 1101, such a power was held voidable. In Rocks v. Cornell, 21 R. I. 532; 45 Atl. 552, it was said to be void.