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.
Whether restoration of consideration by an infant is on the one hand a condition precedent to disaffirmance or concurrent with it, or, on the other, it is not a condition precedent, but on disaffirmance the adversary party has merely a right of action against the infant for so much of the consideration as he is bound to return is a question on which there is a hopeless division of authority. There is a tendency not to insist on restoration as a condition precedent at law, as the infant is either resisting enforcement of the contract, if defendant; or, if plaintiff, has avoided the contract by his own conduct without the aid of the court and is suing to regain possession of what he has parted with or to obtain judgment for its equivalent.1 There is a tendency in equity to insist on restoration as a condition precedent to the right of disaffirmance or concurrent with it, on the principle that he who seeks equity must do equity.2 Some courts suggest the distinction that an infant must return the consideration to rescind an executed contract but not to rescind one executory as to him ;3 but this rule has been said to exist only in equity.4 This distinction reconciles many of the cases but by no means all. Thus a return of the consideration has been treated as a condition precedent to allow infancy to be interposed as a defense to a promissory note.5 To work out this distinction: if the contract has been executed by the infant and he is suing to recover what he has parted with, restoration is not a condition precedent at law.6 At equity, however, restoration is a condition precedent to relief if the infant is asking affirmative relief,7 or restoration is decreed in the same action in which the infant seeks relief.8 In a suit in equity to recover realty conveyed by the infant, restoration of the consideration seems to be at least a concurrent condition.9
28 Drude v. Curtis, 183 Mass. 317; 62 L. R. A. 755; 67 N. E. 317.
1 Shuford v. Alexander, 74 Ga. 293; Clark v. Van Court, 100 Ind. 113; 50 Am. Rep. 774; Briggs v. McCabe, 27 Ind. 327; 89 Am. Dec. 503.
2 Eureka Co. v. Edwards, 71 Ala. 248; 46 Am. Rep. 314; Englebert v. Troxell, 40 Neb. 195; 42 Am. St. Rep. 665; 26 L. R. A. 177; 58 N. W. 852.
3 Eureka Co. v. Edwards. 71 Ala. 248; 46 Am. Rep. 314; Bailey v.
Bamberger, 11 B. Mon. (Ky.) 113; Badger v. Phinney, 15 Mass. 359; 8 Am. Dec. 105; Craighead v. Wells, 21 Mo. 404; Bedinger v. Wharton, 27 Gratt. (Va.) 857; Mustard v. Wohlford, 15 Gratt. (Va.) 329; 76 Am. Dec. 209.
4 Smith v. Evans, 5 Humph. (Tenn.) 70.
5 At law. Philpot v. Mfg. Co., 18 Neb. 54; 24 N. W. 428. In equity. Pemberton, etc.. Association v. Adams, 53 N. J. Eq. 258; 31 Atl. 280.
If the contract is executory as to the infant and he is resisting the enforcement of it at law, he need not restore the consideration as a condition precedent.10 If he is defending in equity he need not restore the consideration as a condition precedent to avoiding the contract.11
In some jurisdictions an attempt has been made to reconcile authorities by holding that an infant need not repay the consideration still held by him as to condition precedent to avoiding a conveyance of realty;12 but that he must do so to avoid an executed sale by him of personalty.13 Other courts have held that an infant is obliged to return the purchase price as to condition precedent to avoiding a conveyance of realty.14 If the infant after coining of age has conveyed to a bona fide purchaser and has thereby rescinded a prior deed made during infancy, the second purchaser may recover the realty from the first without restoring to the latter the consideration paid by him.15 It has been held that equity will not enjoin an infant from disaffirming a sale of land without returning the purchase money ;16 but in other jurisdictions equity will enjoin an infant from enforcing a judgment in ejectment before he restores the money paid for the land to his guardian and by him paid to the infant.17
6 Miller v. Smith, 26 Minn. 248; 37 Am. Rep. 407; 2 N. W. 942. (His ability to restore was not shown, however.) Ruchizky v. De Haven, 97 Pa. St. 202; Shaw v. Boyd, 5 Serg. & R. (Pa.) 309; 9 Am. Dee. 368. The court, in speaking of the proposition that restoration is a condition precedent, said: "As a general rule it is unsound." Ruchizky v. De Haven, 97 Pa. St. 202. Contra, Carr v. Clough, 26 N. H. 280; 59 Am. Dec. 345.
7 Eureka Co. v. Edwards, 71 Ala. 248; 46 Am. Rep. 314; Utermehle v. McGreal, 1 D. C. App. 359; En-glebert v. Troxell, 40 Neb. 195; 42 Am. St. Rep. 665; 26 L. R. A. 177; 58 N. W. 852.
8 Smith v. Evans, 5 Humph. (Tenn.) 70.
9 Bozeman v. Browning, 31 Ark. 364; Bryant v. Pottinger, 6 Bush. (Ky.) 473.
10 Craighead v. Wells, 21 Mo. 404. Contra, Philpot v. Mfg. Co., 18 Neb. 54; 24 N. W. 428.
11 Petty v. Roberts, 7 Bush. (Ky.) 410. Contra, that the infant cannot defend against his note and mortgage without restoring the consideration received by him. Pember-ton, etc., Association v. Adams, 53 N. J. Eq. 258; 31 Atl. 280. (The infant had, however, made a false representation as to his age.)
12 Carpenter v. Carpenter, 45 Ind. 142; Moore v. Baker, 92 Ky. 518; 18 S. W. 363; Dawson v. Helmes, 30 Minn. 107; 14 N. W. 462; Cresin-ger v. Welch, 15 Ohio 156; 45 Am. Dec. 565.
13 Bailey v. Bamberger, 11 B. Mon. (Ky.) 113; Philpot v. Mfg. Co., 18 Neb. 54; 24 N. W. 428; Stack v. Cavanaugh, 67 N. H. 149; 30 Atl. 350.
Even where restoration is a condition concurrent or precedent, it must be shown that the infant actually received the consideration,18 and that he has it.19 If he has wasted it, he is not bound to restore it at all.20 Even where the return of the consideration is said to be a condition precedent, if the infant in his petition to recover realty offers to pay whatever has been expended by grantee in behalf of the infant, alleges that he does not know what the amount is and asks for an accounting, this is sufficient without an actual tender.21