83 Indiana, 382. - 1882.
Suit to set aside a deed and recover the possession of certain lands. Plaintiff below had inherited the lands from her father and, her husband joining with her in the deed, had conveyed them to Welch. The complaint alleges that " at the time of executing said conveyance this plaintiff was a minor, under the age of twenty-one years, and is yet," and that on a certain day named she had repudiated the conveyance. The defendant demurred for the reason, among others, that the complaint did not state facts sufficient to constitute a good cause of action. The demurrer was overruled and defendant appeals to this court.
Howk, J. - * * * This action was commenced on the 3d of November, 1879, and it was alleged in the complaint then filed that the appellee, Nancy Bunce, was then "a minor, under the age of twenty-one years," and that she had disaffirmed her conveyance of the real estate to the appellant on the 25th of October, 1879. preceding the commencement of this suit. It is clear, therefore. that the question above stated 1is fairly presented for decision by the demurrer to the complaint. We are of the opinion that the question stated must be answered in the negative. It would seem to be settled by the decisions of this court that an infant cannot disaffirm or avoid his or her conveyance of real estate, simply on the ground of infancy, which is the only ground relied upon in the case at bar, until his or her arrival at majority. Chapman v. Chapman, 13 Ind. 396; Miles v. Lingerman, 24 Ind. 385; Law v. Long, 41 Ind. 586.
1 "Can an infant disaffirm his or her conveyance of real estate during infancy, or before he or she arrives at the full and lawful age of twenty-one years." - Ed.
The appellee's counsel, as we understand their argument, concede that the rule of law, on the subject under consideration, was formerly as we have stated it. But counsel claim that this rule was changed by the provisions of § 10 of the Civil Code of 1852, and that this section has been overlooked by this court in its more recent decisions on the subject of the rule. This section 10 provides as follows: "When an infant shall have a right of action, such infant shall be entitled to maintain suit thereon, and the same shall not be delayed or deferred on account of such infant not being at full age." 2 R. S. 1876, p. 37; § 12, Civil Code of 1881; § 255, R. S. 1881.
We are of the opinion, however, that the section quoted has no application to the question under consideration, and, therefore, makes no change in the rule of law in relation thereto. An infant has no right of action as to lands conveyed away by him or her, simply on the grounds of infancy, until such conveyance has been disaffirmed or avoided. An infant's conveyance of real estate is not void, but is merely voidable; and it cannot be avoided or dis. affirmed, simply on the score of infancy, until the infant has arrived at majority. It seems to us, therefore, that the facts stated in the complaint, in the case now before us, showed clearly that the appellee, Nancy Bunce, had no right or cause of action against the appellant, at the commencement of this suit, and that the demurrer to the complaint, for the want of sufficient facts, ought to have been sustained.
Some other points, of minor importance, are noticed, rather than discussed, by the appellant's counsel. We deem it unnecessary for us to consider or decide these points, as the judgment must be reversed for the reasons already given.
The judgment is reversed, with costs, and the cause is remanded with instructions to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.1
1 But the infant may enter while under age, and continue to take the profits until he is of age, when he may either affirm or disaffirm. Bool v. Mix, 17 Wend. 119. - Ed.
69 New York, 553. - 1877.
Church, C. J. - The important question in this case is whether it was necessary for the defendant to restore the consideration received for the transfer of the land to the plaintiff to entitle him to rescind the contract. The defendant is a son of the plaintiff. He conveyed to the plaintiff the premises in question when under the age of twenty-one years, for which he received the sum of $400. It appeared affirmatively that the son had used up, lost, or squandered the money before he became of age, and had no part of it, nor any other property except the land at the time of arriving at age. After a careful examination of the authorities and the con-fiicting opinions below, we are inclined to concur with the opinion of Gilbert, J, in affirmance of the judgment. We do not deem it profitable to review the authorities upon the question, and do not intend to extend our decision beyond the principal facts involved in this case.
There are expressions of judges, and general rules laid down by text writers, and some cases which seem to favor the doctrine contended for by the appellant, but in nearly all of them there is a manifest distinction in the facts. The weight of authority is to the contrary effect. 10 Peters U. S. 58, 74; 97 Mass. 508; 6 Gray, 279; 27 Vt. 268; 100 Mass. 174. These and like authorities, we think, accord with the general principles of the law for the protection of infants. The right to repudiate is based upon the incapacity of the infant to contract, and the incapacity applies as well to the avails as to the property itself, and when the avails of the property are improvidently spent or lost by speculation or otherwise during minority, the infant should not be held responsible for an inability to restore them. To do so would operate as a serious restriction upon the right of an infant to avoid his contract, and in many cases would destroy the right altogether. A person purchasing real estate of an infant, knowing the fact, and especially the father, must and ought to take the risk of the avoidance of the contract by the infant after arriving at maturity. The right to rescind is a legal right established for the protection of the infant, and to make it dependent upon performing an impossibility, which impossibility has resulted from acts which the law presumes him incapable of performing, would tend to impair the right and withdraw the protection. Both upon authority and principle we think a restoration of the consideration could not be exacted as a condition to a rescission on the part of the defendant.
Mere acquiescence for three years after arriving at age without any affirmative act was not a ratification, n J. R. 539; 14 Id. 124; 23 Maine R. 517. The entry made by the defendant in this case for the purpose of disaffirming the contract with notice of such intention was sufficient to entitle him to recover. 17 Wend. 120.
The judgment must be affirmed.1
II. Effect of judicial sales on legal character of infant's interest in realty.
6 Iredell's Equity (N. C), 524. - 1850.
[Reported herein at p. 70. ]2
1 See the New York statutes as to infant's powers to convey. § 3 R. P. L. For special proceedings for sale of infant's real estate, see Code Civ. Pro., §§ 2345-2364. - Ed.
2 See also § 2359 N. Y. Code Civ. Pro. - Ed.