nants which is not enforceable as regards one of the parties because of infancy, coverture, or other disability will not be enforced in equity against the other party. Hence it is a general rule that where a married woman does not have capacity to bind herself to the performance of an executory contract, the party assuming to contract with her is not, in equity, obliged to perform such contract on his part. Similarly an infant cannot sustain a suit for the specific performance of a contract, because the remedy is not mutual."

In the notes to the text quoted from many cases are cited, a number being cases which have been annotated, and cases to an indefinite number could be cited to support the text quoted. It is unnecessary to do this, however, as the rule appears to be universal that there must be mutuality, both as to liability and remedy, be

Specific per

formance- fore relief by way right of infant. of specific performance will be granted either party. This doctrine was announced by this court in the early case of Nicks v. Rector, 4 Ark. 251, and has since been reaffirmed in a number of

cases.

Appellant insists, however, that this rule is not applicable here, for the reason that he has tendered full performance of the contract and ratified the contract after attaining his majority. He states his position as follows: "One who voluntarily makes an executory contract with an infant is, under our law, charged with knowledge of the fact that the infant has a designated period of time after he reaches his majority in which to elect whether he will affirm or disaffirm his contract."

At 10 of the chapter on Specific Performance in 36 Cyc. p. 629, it is said: "Specific performance of an infant's contract at his suit is refused, in England, on the ground that there is no mutuality of remedy; but this ruling has not been universally followed in this country, since it enables the other party to

the contract to take advantage of plaintiff's infancy, and thus contravenes the general policy of the law relating to infants' contracts. After the infant becomes of age, he may enforce in equity contracts made by him during his minority. The fact that they were previously voidable by him is no defense."

In support of the statement of the text that after an infant becomes of age he may enforce in equity contracts made by him during his minority, and that the fact that they were previously voidable by him is no defense, the case of Clayton v. Ashdown, 9 Vin. Abr. 393, pl. 1, is cited.

In our present investigation of the question under consideration we have found many citations to this old English case. The facts there were that Fuller, during his minority, by himself and through his guardian, entered into articles with the defendant to let him a farm at a certain rent. The defendant entered upon the farm, and paid rent until after Fuller became of full age. After that Fuller conveyed the fee to the plaintiff in that case, who sought to enforce the provisions of the original contract in regard to the renewal of the lease, whereupon the defendant quit the farm, insisting that he was only a tenant at will, and refused to accept a lease because Fuller was an infant at the time of making the agreement, and for that reason was not bound by it, and therefore the defendant ought not to be bound. It was insisted that the defendant was bound by the articles, though Mr. Fuller had his election, at full age, to perform or not perform the articles, "for though in such cases the infant has his election at his full age, the other party has not his election, but is bound by such agreement with an infant." Upon this statement of facts the opinion in this old case was as follows: "But Harcourt C. decreed that the plaintiff should execute a lease to the defendant, and the defendant execute a counterpart of such lease to the plaintiff in pur

ready to convey at appellant's election until he had attained his majority and had then determined what he would do. It is a general rule of equity that a party entitled to a specific conveyance of property will not be permitted to hold back from an assertion of

Specific performanceright to delay demand.

his rights and thus speculate on the advantage of performance, but he is required to be vigilant and prompt in the assertion of those rights; otherwise equity will refuse its aid and leave the party to such redress which the law had left him by a suit for damages. De Cordova v. Smith, 9 Tex. 129, 58 Am. Dec. 136.

Appellant would not, therefore, have had the right to insist that appellee stand seized of his title for the more than two years remaining of his minority. He could not have asked the enforcement of his contractual rights without complying with the implied condition of the contract that he act with reasonable promptness, and this is a condition which equity also imposes as a prerequisite before granting the relief of specific performance.

Appellant must, therefore, necessarily have moved to obtain specific performance at a time when he was

still a minor, for to have waited beyond that time would have violated the equitable requirement that he move promptly, as well as the condition of the contract implied by law that he close the contract of purchase within a reasonable time; and when he did thus move his attitude would necessarily have been that of one who was asking for a relief which was not reciprocal and which could not have been awarded against him on account of his minority. For this reason a minor cannot maintain a suit to specifically perform a contract.

The case of Cooper v. Pena, 21 Cal. 403, was one in which a party agreed to perform certain services in consideration of the conveyance to him of a tract of land. Performance of the services was tendered and refused, whereupon a suit was brought to enforce specific performance of the contract. In the opinion of the supreme court of California, in which Chief Justice Field, afterwards a member of the Supreme Court of the United States, participated, it was held that, inasmuch as the plaintiff could not be compelled to complete the services which he agreed to perform, the fact that he offered to complete the services could not be treated as the equivalent of actual performance. The court said that the rejection of the offer by the defendant did not release the plaintiff from his obligation to perform so long as he insisted upon the agreement, but, as this was an obligation which the court could not enforce, there was no principle of law which would justify the court in enforcing the obligation on the other side, and that the only course open to the court was to refuse the relief of specific performance and leave the plaintiff to his remedy for damages. In the course of the opinion it was said: "Various grounds are urged by the defendant in support of the order, the principal one of which is the want of mutuality in the agreement. So far as the agreement is unperformed, the plaintiff cannot be com

pelled to perform it on his part, for equity will not enforce a contract for personal services, but leave the party to his remedy at law. In respect to the remedy, therefore, there is no mutuality, and it is universally admitted that equity will not enforce a contract, where the party asking its enforcement cannot himself be compelled to perform it. The contract must be just and equal in its provisions, and the subject-matter must be such that equity can take jurisdiction of it, and compel performance by both of the parties. The remedy must be mutual as well as the obligation, and where the contract is of such a nature that it cannot be specifically enforced as to one of the parties, equity will not enforce it against the other. As a general rule, the question of mutuality is to be determined by the contract itself, and is not affected by circumstances occurring after the contract is made, and the rights of the parties are fixed."

The court then quoted from the case of Duvall v. Myers, 2 Md. Ch. 401, as follows: "The right to a specific execution of a contract, so far as the question of mutuality is concerned, depends upon whether the agreement itself is obligatory upon both parties, so that upon the application of either against the other the court would coerce a specific performance.'"

After announcing certain exceptions to the general rule that the want of mutuality at the time the

contract was entered into (none of which exceptions are applicable here) is a sufficient reason for refusing to enforce the contract, the opinion proceeded to say: "In these cases, however, there are considerations which override the principle of mutuality; and we are not aware of any case involving a reciprocity of obligation, in which a contract has been enforced in favor of a party who had not actually performed it, or could be compelled to do so. It is safe to say that no such case exists, and that equity will not interfere in favor of one of the parties where it is incapable of doing justice to the other, by enforcing the entire contract according to its terms."

Appellant insists, however, that he has at all times offered to perform, and that he ratified the contract after attaining his majority. We think, however, that this insistence is sufficiently answered by what we have said. When the contract was entered into and when the performance thereof was due appellant was a minor, and could not have been required to perform. There was lacking that mutuality of right and remedy which is essential to granting relief by decreeing specific performance, and the court below was right in denying that relief to appellant, and the decree to that effect is affirmed.

Petition for rehearing denied January 11, 1926.

2. Explained, 123.

3. Applied:

(a) Generally, 124.

(b) Contracts for adop

II. b-continued.

3. Applied, 132.

a. Introduction, 132.

I. Scope and introduction.

The situation presented in the reported case (BRACY V. MILLER, ante, 114) and several other cases examined authorizes a discussion of the right of persons, both before (subd. II.) and after (subd. III.) attaining majority, specifically to enforce contracts entered into during minority.

The annotation is not concerned directly with the rule denying specific performance against an infant. No attempt has been made to collect the authorities so holding; several are, however, referred to infra, II. a. The only interest of that rule in connection with the right of an infant to get specific performance is that it is a basis of one view, taken in some of the cases commented upon herein (vide II. a).

It will be observed that the title does not comprehend the question of the right of an infant specifically to enforce a contract made for his benefit by an adult, such as a contract of adoption and inheritance. These points are covered by the annotation in 2 A.L.R. 1193, supplemented in 33 A.L.R. 739, and the annotation in 27 A.L.R. 1325, on "Specific performance of contract to adopt" (two cases of this kind have, however, been stated infra, II. a, 3, (b) ); nor are cases of specific performance by an infant heir of a contract made by his ancestor (see Shannon v. Bradstreet (1803) 1 Sch. & Lef. (Ir.) 52), included.

Cases are not cited in the annotation which merely affirm in a broad way that, as said in an early Pennsylvania case, he who undertakes to deal with infants knows that, from their incapacity to contract, their agreements must necessarily be of an executory kind, "binding on the adult but liable to be either affirmed by the infants when they come of age, or to be then disaffirmed, at their will and pleasure" (M'Ginn v. Schaeffer (1838) 7 Watts (Pa.) 412), but citations

III. continued.

b. Rule in Clayton v. Ashdown, 132.

c. Contrary view in BRACY V. MILLER, 135.

are confined to cases consciously considering the right of an infant to specific performance.

In denying the equitable relief sought by infants, the courts have not intended to indicate that they were left without other remedy. "Denying specific performance," said Judge Cooley in one case, "does not deny the legality or obligation of the contract; it denies merely that the case is one of equitable cognizance." Rust v. Conrad (1882) 47 Mich. 449, 41 Am. Rep. 720, 11 N. W. 265 (a case not within the scope of the annotation). Beickler V. Guenther (1903) 121 Iowa, 419, 96 N. W. 895, is an instructive case on the measure of damages which an infant may recover for breach of contract to convey land, where he elects that remedy instead of attempting to enforce specific performance.

And Vanatter v. Marquardt (1903) 134 Mich. 99, 95 N. W. 977, may be referred to as containing a correct exposition of the law relating to the respective rights of the parties to a contract to convey land, where the infant vendee is unable to keep up payments promised, and the adult vendor threatens to exercise a pretended right of forfeiture under the contract.

II. Specific enforcement during

mi