This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Infant purchasing may elect, after majority.
An infant, after attaining majority, must, if he intend to abandon his contract, do so within a reasonable time to be determined on the circumstances in each case (t). If his election be to avoid the purchase he ought to disclaim (u).
What time allowed for election.
When a person, after attaining twenty-one, desires to adopt and make binding a contract which he has entered into while a minor, it is prudent, having regard to the provisions of s. 2 of the Infants' Relief Act, 1874 - at all events if the contract is wholly executory - to have an entirely new contract, not one which is in terms, or according to its fair construction, merely a confirmation of the previous voidable contract.
Infants' Relief Act.
(p) S. 5, repealed by the Naturalization Act, 1870.
(q) This enactment does not qualify an alien to be the owner of a British ship. (r) S. 25.
(s) Ketsey's case, (1612) Cro. Jac. 320; Co. Litt. 2 b.
(t) See Edwards v. Carter, 1893, A. C. 360; Re Jones, 1893, 2 Ch. 461; 62 L. J. Ch. 996; Viditz v. O'hagan, 1900, 2 Ch. at pp. 97, 98; 69 L. J. Ch. 507; Re Hodson, 1894, 2 Ch. 421; 63 L. J. Ch. 609.
(u) See Birkenhead, etc. R. Co. v. Pitcher, (1850) 5 Ex. at p. 128; 19 L. J. Ex. 207; Goode v. Harrison, (1821) 5 B. &. Ald. 147.
Although an infant may abandon a contract, and thus relieve himself from all unsatisfied liabilities under it, he cannot, it is said, recover money which he has actually paid, unless such payment were procured by fraud (x), or he has derived no benefit from the contract; and if he is unable to restore the consideration, this will be an additional bar to the action: as where an infant paid a premium for a lease of business premises, and entered upon and occupied the premises (y), or paid money for the use of furniture in a house which he had taken and occupied (z), in both of which cases it was held that he could not recover the money he had paid; and though, upon the purchase of the fee simple the same decisive effect might not always be attributable to mere occupation (a), any act affecting the value of the estate, e.g., the felling of ornamental timber, or the removal or alteration of buildings, etc, would, it is conceived, be conclusive against his right to reclaim the purchase-money.
Whether an infant, if he abandon the contract, can recover the price.
If, however, the infant had fraudulently represented himself to the vendor as an adult, he would be unable, it is conceived, to recover any purchase-money he may have paid, and the Court would allow the vendor to avail himself of any collateral securities he might hold for the unpaid balance; but the Court could not enforce any personal security given during infancy, such security being void (b).
Fraudulent purchase by, relieved against: semble.
(x) Macph. on Inf. 484; Wilson v. Kearse, (1830) 1 Pea. A. C. 196; Ex p. Taylor, (1856) 8 D. M. & G. 254; 25 L. J. Bky. 35; Steinberg v. Scala (Leeds), Ltd., 1923, 2 Ch. 452.
(y) Holmes v. Blogg, (1818) 8 Taunt. 508; Ex p. Taylor, (1856) 8 D. M. & G. 254; 25 L. J. Bky. 35; and see Thurstan v. Nottingham Permanent Benefit Building Society, 1902, 1 Ch. 1; 1903, A. C. 6.
(z) Valentini v. Canali, (1889) 24 Q. B. D. 166; 59 L. J. Q. B. 74.
(a) See, however, Blackburn v. Smith, (1848) 2 Ex. at p. 792; 18 L. J. Ex. 187.
(b) Thurstan v. Nottingham Permanent Benefit Building Society, sup.
In this connection, s. 27 of the S. L. Act, 1925, and s. 19 of the L. P. Act, 1925, must be borne in mind, by which enactments it is provided (inter alia) that a conveyance of a legal estate in land to an infant, or to two or more persons jointly all of whom are infants, for his or their own benefit, shall operate only as an agreement for valuable consideration to execute a settlement.
Effect of conveyance of legal estate to infant.
A lunatic or idiot may purchase; and, according to the early authorities, could not himself, though he recovered his senses, avoid the transaction; but it might be set aside by the Crown, after office found (c), or by his committee, after inquisition (d); or by his representatives, after his death, unless he recovered his senses and agreed to the purchase (e). The present doctrine of the Courts in regard to contracts for purchases by lunatics seems, however, to accord with that which has been already stated with respect to contracts for sale (f).
Purchase by lunatic, how far voidable.
In a well known text-book (g) a doubt is expressed (which does not seem to be well founded) whether the power given by the Lunacy Act, 1890, to the committee to carry out contracts entered into before the lunacy, apply to purchases. "A valuable power," it states, "is conferred by s. 120 (i), under which the Judge may authorise and direct the committee of the estate of a lunatic to perform any contract relating to the property of the lunatic entered into by the lunatic before his lunacy. The sub-section would apply to a contract entered into by the lunatic to sell property or grant a lease. It is not so clear that it applies to a contract to buy; but the difficulty could be got over in other ways."
Power of committee to complete purchase.
A married woman may purchase; and, by the contract for purchase, bind her separate property, even without referring to it (g); and such a contract entered into after the 4th December, 1893, would bind her subsequently acquired separate property (not being property which she was restrained from anticipating (h)), though she had not at the time of the contract any separate property.
Purchase by married woman, when voidable.
(c) Co. Litt. 247 a.
(d) A.-g. v. Parkhurst, (1668) 1 Ch. Cs. 112. (e) Co. Litt. 2 b; 2 Bl. Com. 292; Shelf, on Lun. 2nd ed. 347; Steed v. Calley, (1836) 1 Ke. 620. (f) Sup. pp. 7 - 9. (g) Theobald on Lunacy (1924), p. 449.
Where the married woman is judicially separated from her husband, or has obtained a protection order (i), or where her husband is a convicted felon, or an alien enemy, she is capable (independently of the M. W. P. Acts) of entering into a binding contract for purchase (k).
Cases where a married woman is regarded as a feme sole.