has come of age.26 Nor can an assignee in insolvency disaffirm a deed made by the insolvent while under age." Neither, it seems, can a guardian of a minor maintain a suit to avoid a conveyance by his ward, for the guardian has no title to the property, but is merely an agent. 28 Neither the minor nor his guardian can determine during the continuance of minority whether the conveyance shall be affirmed or disaffirmed. This is a matter for the grantor's decision after he becomes of age.29 But if on coming of age the ward for any reason is legally incapacitated and under guardianship, it is held that the guardian may avoid any conveyance executed by the ward while under age which might be avoided by the ward himself if capable of exercising the right. It is held that the heirs of a deceased infant grantor may avoid his deed in the same manner and within the same time that such grantor himself might if living.31 Privies in estate cannot take advantage of the disability of infancy, though privies in blood may."

32

30

§ 3814. Disability of infants-What amounts to an affirmance. In some jurisdictions it is held that an infant's deed is ratified only by some positive act evincing his assent to the conveyance, and that mere silence or acquiescence, no matter how long continued short of the statutory period of limitation, does not operate to ratify the conveyance.33 But, as shown in the next section, the contrary is held in many jurisdictions.

28

Sharp v. Robertson's Exrs., 76 Ala. 343; Bozeman v. Browning, 31 Ark. 364; Kingman v. Perkins, 105 Mass. 111; Beardsley v. Hotchkiss, 96 N. Y. 201; Harris v. Musgrove, 59 Tex. 401. See also, Singer Mfg. Co. v. Lamb, 81 Mo. 221.

"Mansfield v. Gordon, 144 Mass. 168. 10 N. E. 773.

28 Lombard v. Morse, 155 Mass. 136, 29 N. E. 205, 14 L. R. A. 273; Lang v. Whidden, 2 N. H. 435. See also, Oliver v. Houdlet, 13 Mass. 237, 7 Am. Dec. 134.

29 Dunton v. Brown, 31 Mich. 182.

v. Bonner, 75 I11. 315; Harvey v. Briggs, 68 Miss. 60, 8 So. 274, 10 L. R. A. 62; Singer Mfg. Co. v. Lamb, 81 Mo. 221; Veal v. Fortson, 57 Tex. 482; Person v. Chase, 37 Vt. 647, 88 Am. Dec. 630.

32

Bozeman v. Browning, 31 Ark. 364; Hoyle v. Stowe, 2 Dev. & B. (N. Car.) 320; ante, vol. 1, § 335.

McCarthy v. Nicrosi, 72 Ala. 332, 47 Am. Rep. 418; Stull v. Harris, 51 Ark. 294, 11 S. W. 104, 2 L. R. A. 741; Putnal v. Walker, 61 Fla. 720, 55 So. 844; Hoffert v. Miller, 86 Ky. 572, 9 Ky. L. 732, 6 S. W. 447; Syck v. Hellier, 140 Kv. 388, 131 S. W. 30; Davis v. Dudley, 70 Maine 236, 35 Am. Rep. 318; Prout v. Wiley, 28 Mich. 164: Donovan v. Ward. 100 Mich. 601, 59 N. W. 254; Wallace v.

36

34

On coming of age, an infant affirms or ratifies his deed by any act whereby he recognizes the instrument as being in force according to its purport. Thus, if, having given a mortgage on his real estate while a minor, after coming of age he conveys the land subject to the mortgage, he thereby confirms the mortgage. 35 So also, if, after coming of age, the grantor expresses satisfaction with the sale and receives a part of the consideration money, this has been held sufficient ratification of the deed. But a mere recognition of the fact that the grantor had made a conveyance is not of itself proof of a confirmation of such conveyance. 37 Where, however, an infant after becoming of age stands by and sees persons who hold lands under a deed executed by him during his minority make improvements thereon, without objecting, his silence may be taken and considered as a ratification of his deed. 38 The grantor ratifies his deed made during his minority by accepting a reconveyance from his grantee of a part of the land after he becomes of age.39 So. also, a reacknowledgment or redelivery of the deed after the grantor has reached his majority is a ratification of it which relates back, in effect, to the original delivery. But the deed is not ratified by the grantor offering, after reaching his majority, to make a deed of ratification upon some contingency, such as a

vine v. Irvine, 9 Wall. (U. S.) 617, 19 L. ed. 800. See also, ante, vol. 1, §§ 327, 328.

35 American Mortg. Co. v. Wright, 101 Ala. 658, 14 So. 399; Losey v. Bond, 94 Ird. 67; Ward v. Anderson, 111 N. Car. 115, 15 S. E. 933.

347.

Ferguson v. Bell's Admr., 17 Mo.

Latham, 52 Miss. 291; Shipp v. McKee, 80 Miss. 741, 31 So. 197, 32 So. 281, 92 Am. St. 616; Lacy v. Pixler, 120 Mo. 383, 25 S. W. 206; Linville v. Greer, 165 Mo. 380, 65 S. W. 579; Emmons v. Murray, 16 N. H. 385; Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233; O'Rourke v. Hall, 38 App. Div. (N. Y.) 534, 56 N. Y. S. 471; Drake v. Ramsay, 5 Ohio 251; Cresinger v. Welch's Lessee. 15 Ohio 156, 45 Am. Dec. 565; Sims v. Everhardt, 102 U. S. 300, 26 L. ed. 87; Birch v. Linton, 78 Va. 584, 49 Am. Rep. 381; Wilson v. Branch, 77 Va. 65, 7 Va. L. J. 161, 46 Am. Rep. 709; Gillespie v. Bailey, 12 W. Va. 70. 29 Am. Rep. 445. See Lanning v. Brown, 84 Ohio St. 385, 95 N. E. 921, Ann Cas. 1912C. 772 and note. Sims v. Smith, 99 Ind. 469, 50 "Allen v. Poole, 54 Miss. 323; Ir- Am. Rep. 99.

37 Tucker's Lessee v. Moreland, 10 Pet. (U. S.) 58, 9 L. ed. 345. 39 Davis v. Dudley, 70 Maine 236, 35 Am. Rep. 318. See also, Prout v. Wiley, 28 Mich. 164; Allen v. Poole. 54 Miss. 323; Emmons v. Murrav, 16 N. H. 385; Gillespie v. Bailey, 12 W. Va. 70, 29 Am. Rep. 445.

39 Ferguson v. Bell's Admr., 17 Mo. 347; McCormic v. Leggett, 53 N. Car. 425.

40

condition that the unpaid purchase-money is paid or secured to him.*1

§ 3815. Disability of infants-What amounts to a disaffirmance.-At common law, an infant's conveyance by livery of seizin could be avoided only by an act of equal solemnity;* but in modern times, generally speaking, one may disaffirm a deed made during infancy by any act done after coming of age which is inconsistent with such deed, so that the two cannot properly stand together. Any act unequivocally manifesting an intention to disaffirm the deed is sufficient," as, for example, an absolute conveyance to another person after becoming of age; the bringing of an action in ejectment; the filing of a complaint to cancel a former conveyance; and, in some cases, the filing with the recording officer of a notice of disaffirmance.45 A re-entry is also an act showing an intention to disaffirm a deed. A deed of an infant may be avoided by his absolute sale and conveyance of the same land to a third person, after he is of age. 47 The grantor on coming of age may avoid his deed as against a bona fide purchaser for value from his vendee, and he may demand and recover the property from the person in possession, whoever he may be. 48

46

§ 3816. Disability of infants-Affirmance from lapse of time. In many jurisdictions mere silent acquiescence on the part of the grantor after becoming of age does not create a pre

"Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. 569. 12 Bool v. Mix, 17 Wend. (N. Y.) 119, 31 Am. Dec. 285.

43 Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Bagley v. Fletcher, 44 Ark. 153; Illinois Land & Loan Co. v. Beem, 2 Ill. App. 390; Long v. Williams, 74 Ind. 115; Allen v. Poole, 54 Miss. 323; Singer Mfg. Co. v. Lamb, 81 Mo. 221.

44

Bagley v. Fletcher, 44 Ark. 153; Tunison v. Chamblin, 88 Ill. 378.

45 Shroyer v. Pittenger, 31 Ind. App. 158, 67 N. E. 475; Haynes v. Bennett, 53 Mich. 15, 18 N. W. 539; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906, 18 Am. St. 569; Tucker's Lessee v. Moreland, 10 Pet. (U.

S.) 58, 9 L. ed. 345; Sims v. Everhardt, 102 U. S. 300, 26 L. ed. 87.

47

Harris v. Cannon, 6 Ga. 382; Riggs v. Fisk, 64 Ind. 100; Roberts v. Wiggin, 1 N. H. 73, 8 Am. Dec. 38. Bagley v. Fletcher, 44 Ark. 153; Hastings v. Dollarhide, 24 Cal. 195; Riggs v. Fisk, 64 Ind. 100; Corbett v. Spencer, 63 Mich. 731, 30 N. W. 385; State v. Plaisted, 43 N. H. 413; Chapin v. Shafer, 49 N. Y. 407.

sumption of affirmance of his deed unless this is continued for a time which would be a bar to an action of ejectment. However, it has been held in a number of jurisdictions that an infant must within a reasonable time after coming of full age disaffirm his deed executed during minority, or the same will be binding on him.50 As to what constitutes a reasonable time for disaffirmance will depend upon the facts of each particular case, and is a question of fact for the court or jury, depending on the nature of the case. A reasonable time does not, however, ordinarily extend beyond the statutory period of limitation.52

§ 3817. Disability of infants-Restoration of purchasemoney. Some of the earlier authorities hold that on disaffirmance the former infant must restore the consideration; but the general rule now is, that although so much of the consideration for the conveyance as remains in the infant's possession at his majority must be returned upon his disaffirmance; yet his disaffirmance will not be prevented by his inability to return what he has spent or lost during his infancy. Some decisions hold that

49

Irvine v. Irvine, 9 Wall. (U. S.) 617, 19 L. ed. 800; Sims v. Everhardt, 102 U. S. 300, 26 L. ed. 87. See also, Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Stull v. Harris, 51 Ark. 294, 11 S. W. 104, 2 L. R. A. 741; Sims v. Bardomer, 86 Ind. 87, 44 Am. Rep. 263; Hoffert v. Miller, 86 Ky. 572, 9 Ky. L. 732, 6 S. W. 447; Davis v. Dudley, 70 Maine 236, 35 Am. Rep. 318; Donovan v. Ward, 100 Mich. 601, 59 N. W. 254; Lacy v. Pixler, 120 Mo. 383, 25 S. W. 206; McMurray v. McMurray, 66 N. Y. 175; Cresinger v. Welch's Lessee, 15 Ohio 156, 45 Am. Dec. 565; Lenhart v. Ream, 74 Pa. St. 59. See, however, Dolph v. Hand, 156 Pa. St. 91, 27 Atl. 114, 36 Am. St. 25; Birch v. Linton, 78 Va. 584, 49 Am. Rep. 381; Gillespie v. Bailey, 12 W. Va. 70, 29 Am. Rep. 445.

50 Hastings v. Dollarhide, 24 Cal. 195; Kline v. Beebe, 6 Conn. 494; Wallace's Lessee v. Lewis, 4 Har. (Del.) 75; Bentley v. Greer, 100 Ga. 35, 27 S. E. 974; Tunison v. Chamblin, 88 Ill. 378; Shrover v. Pittenger, 31 Ind. App. 158, 67 N. E. 475.

54

Compare Sims v. Bardoner, 86 Ind. 87, 44 Am. Rep. 263; Goodnow v. Empire Lumber Co., 31 Minn. 468, 18 N. W. 283, 47 Am. Rep. 798; Englebert v. Troxell, 40 Nebr. 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. 665; Weeks v. Wilkins, 134 N. Car. 516, 47 S. E. 24; Dolph v. Hand, 156 Pa. St. 91, 27 Atl. 114, 36 Am. St. 25; Scott v. Buchanan, 11 Humph. (Tenn.) 468; Ferguson v. Houston, E. & W. T. R. Co., 73 Tex. 344, 11 S. W. 347; Richardson v. Boright, 9 Vt. 368.

51 Wiley v. Wilson, 77 Ind. 596; Scott V. Buchanan, 11 Humph. (Tenn.) 468. For what is or is not a reasonable time see note in Ann. Cas. 1912C. 778, 779.

62 Nathans v. Arkwright, 66 Ga. 179; Shroyer v. Pittenger, 31 Ind. App. 158, 67 N. E. 475. But see ante, vol. 1, § 340.

53 Bartlett V. Cowles, 15 Gray (Mass.) 445; Kilgore v. Jordan, 17 Tex. 341: Farr v. Sumner, 12 Vt. 28, 36 Am. Dec. 327.

Bell V. Burkhalter (Ala.), 57 So. 460; Muller v. Cheese Grocery

the former minor may disaffirm without restoring the consideration, unless he has the identical property, even the identical money, received by him.55 Others hold that if the grantor, when avoiding his conveyance made during minority, has in his hands any of its fruits specifically, such as a note or mortgage, or other property taken in exchange, his act in avoiding the conveyance will divest him of his right to retain such securities or property, and the other party may reclaim it.56 But he is not required to return an equivalent for such part of the consideration as he may have disposed of during his minority." The weight of authority seems to be, that to give effect to a disaffirmance of an infant's deed, it is not necessary that his grantee be placed in statu quo by the restoration of the consideration he has paid,58 at least where he no longer has it on arriving at majority.

§ 3818. Disability of married women-In general.-At common law, a married woman could not convey her land either by separate deed or by joining in a conveyance with her husband. Her legal existence at the date of her marriage was merged in that of her husband," but this ancient doctrine has now been molified or abrogated in most of the states of this country." This ancient rule of the common law was modified by common

Co., 241 Ill. 398, 89 N. E. 796, 28 L. R. A. (N. S.) 128, 132 Am. St. 216; United States &c. Co. v. Harrid, 142 Ind. 226, 40 N. E. 1072, 41 N. E. 451; Ison v. Cornett, 116 Ky. 92, 75 S. W. 204, 25 Ky. L. 366; Ridgeway v. Herbert, 150 Mo. 606, 51 S. W. 1040, 73 Am. St. 464; Engelbert v. Troxell, 40 Nebr. 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. 665; Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233; Bullock v. Sprowls, 93 Tex. 188, 54 S. W. 661, 47 L. R. A. 326, 77 Am. St. 849; MacGreal v. Taylor, 167 U. S. 688, 42 L. ed. 326, 17 Sup. Ct. 961.

Hawes v. Burlington, C. R. & N. R. Co., 64 Iowa 315, 20 N. W. 717; Leacox v. Griffith, 76 Iowa 89, 40 N. W. 109.

Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117; Brantley v. Wolf, 60 Miss. 420; Thormaehlen v. Kaeppel, 86 Wis. 378, 56 N. W. 1089.

60

See also, Manning v. Johnson, 26 Ala. 446, 62 Am. Dec. 732; Kerr v. Bell, 44 Mo. 120.

67 Dill v. Bowen, 54 Ind. 204; Englebert v. Troxell, 40 Nebr. 195, 58 N. W. 852, 26 L. R. A. 177, 42 Am. St. 665.

V.

68 Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314; Reynolds v. McCurry, 100 Ill. 356; Shirk Shultz, 113 Ind. 571, 15 N. E. 12; Bartlett v. Drake, 100 Mass. 174, 97 Am. Dec. 92, 1 Am. Rep. 101; Lacy v. Pixler, 120 Mo. 383, 25 S. W. 206; Green v. Green, 69 N. Y. 553, 25 Am. Rep. 233; ante, vol. 1, § 346.

59 Neville v. Cheshire, 163 Ala. 390, 50 So. 1005; Eliason v. Draper (Del.), 77 Atl. 572; Wasem v. Raben, 45 Ind. App. 221, 90 N. E. 636; Sims v. Sims. 79 N. J. L. 577, 76 Atl. 1063.

60 Wasam v. Raben, 45 Ind. App. 221. 90 N. E. 636; Bunnell v. Hixon, 205 Mass. 468, 91 NE. 1022.