that he can only defeat his grantee's title by a direct disaffirmance of the deed made, within a reasonable time after reaching his majority.

Who May Disaffirm. The defense of infancy is a personal privilege for the protection of the infant, which no one can exercise for him while he is sane and alive. Thus, it is generally held that the guardian of a minor cannot avoid his ward's contracts. But upon the infant's death or insanity, his contracts may be avoided or confirmed by his heirs or his conservator. There is no right of disaffirmance in the opposite party because of the infant's right of disaffirmance and, therefore, the infancy of the plaintiff is no defense to an action for breach of promise.

Time of Disaffirmance. With reference to the personal contracts of an infant and those relating to personal property, whether executed or executory, it is a general rule that the infant may disaffirm at any time and recover back property transferred by him.23 But with reference to an infant's conveyance of real estate, the rule is different, and holds that disaffirmance may not be made by the infant until he reaches full age.24 In the latter case the infant may enter and enjoy the profits during his minority, and thus be protected against loss until reaching his majority when he may avoid the conveyance. But in the case of chattels, possession is lost upon conveyance, and postponement until reaching majority before being able to avoid the conveyance, would expose the infant to loss which would be impossible in the case of conveyances of land. "Where the infant can enter, and hold the subject of the sale till his legal age, he shall be incapable of avoiding till that time; but where the possession is changed, and there is no legal means to regain and hold it in the meantime, the infant, or his guardian for him, has the right to exercise the power of rescission immediately.''25

What Amounts to Disaffirmance. An infant sufficiently

23 Towle v. Dresser, 73 Me. 252.

24 Welch v. Bunce, 83 Ind. 382.

25 Stafford v. Roof, 9 Cow. (N. Y.) 626, 628.

disaffirms his contract if he does something inconsistent with its being binding upon him and from which his intention not to be bound may be implied. It is not necessary to expressly disaffirm the contract. Thus, if one brings an action upon reaching majority, to recover back personal property sold during infancy, it is a sufficient disaffirmance, and the same would be true where one who has leased, sold, or mortgaged land during infancy, leases, sells, or mortgages the same to another upon reaching majority.26 The difference between the ancient and modern law is stated as follows:

"The ancient doctrine which required the disaffirming act to be of as high and solemn a character as the act disaffirmed has no place in modern law. The disaffirming act need take no particular form or expression. The deed of a minor may be avoided by acts and declarations disclosing an unequivocal intent to repudiate the binding force and effect of it as a valid instrument."'27

The above quotation expresses the weight of modern authority as opposed to the distinction formerly made, that disaffirmance of a deed must also be by deed, since it operates to transfer title, while ratification might be implied because it simply affirmed a title already transferred.

Ratification or Disaffirmance Must Be of Entire Contract. Ratification or disaffirmance by the infant must be of the entire contract. He cannot ratify the beneficial part of the contract and repudiate the balance. Thus, an infant cannot ratify a lease to himself and avoid the covenant to pay rent, nor can he ratify a purchase of land or chattels made during infancy and repudiate a mortgage given as part of the purchase price. The conveyance and the mortgage are all one transaction.28

§ 44. Return of Consideration. As a general rule, one who disaffirms a contract made during infancy must return the consideration if he has it. If the contract repudiated 26 Tucker v. Moreland, 10 Pet. 58, 9 L. ed. 345. 27 Singer M'f'g Co. v. Lamb, 81 Mo. 221, 225. 28 Young v. McKee, 13 Mich. 552.

has been executed by the adult party and is executory on the part of the infant only, he no longer has any right to the consideration received by him for his repudiated promise, and the adult party may recover it from him in kind if he has it. If the infant has disposed of the consideration received from the other party or has squandered it, so that its return in kind cannot be secured, the other party is without remedy unless he can trace it into the hands of those who received it from the infant.

Where the repudiated contract has been executed by both parties, there is a conflict of decisions among the various States, but the weight of authority supports the rule stated as to contracts executory on the part of the infant.29 Thus, if A, during infancy, trades his horse for B's bicycle, he may repudiate the transaction and recover back his horse without offering to return the bicycle, and A will be without remedy if B has sold the bicycle or destroyed it. If B still has it, A may recover it back. There are several States, however, which hold that if B has the bicycle when he wishes to repudiate the contract, he must first return or offer to return it, or its value if he does not have it, in order to be able to secure the horse.30 It seems that the rule as to return of consideration as a condition precedent is never applied in the case of conveyances of land by infants where the repudiation is by a second conveyance to another person upon reaching majority.

§ 45. Torts Connected with Contracts of Infants. Though an infant is liable for his torts, still his breach of contract cannot be considered a tort so as to make him liable. The wrong must be separate from the contract and not a mere misfeasance in its performance in order to render the infant liable in tort. Thus, where an infant hired a horse to ride and injured it by riding too fast, it was held that he could not be made liable by framing the action in tort for negligence. But where an infant hired a horse and wagon to drive to a certain place, but drove beyond the place and in

29 Chandler v. Simmons, 97 Mass. 508, 514.
30 Taft v. Pike, 14 Vt. 405, 39 Am. Dec. 228.

another direction and injured the horse, the infant was held liable for a conversion of the horse.31

If the infant has induced the other party to contract with him by fraudulently representing that he is of full age, he may still set up his infancy as a defense when sued at law, but may have no relief in a court of equity as against one whom he has entrapped by such fraudulent misrepresentation.32 In some States an infant is liable in an action for deceit for fraudulent misrepresentation or concealment of his age, but the weight of authority seems opposed to such recovery.34

33

MARRIAGE STATUS

The next ground of incapacity to be considered is that arising from one or both of the parties being a married

woman.

§ 46. Incapacity of Married Women to Contract. At common law a married woman was without capacity to contract. Her agreements were void whether she was liv. ing with her husband or not, and even though she and her husband were living apart under a separation agreement.

There were several exceptions to this lack of contractual capacity of married women. A married woman might acquire contractual rights because of personal services rendered by her or because of the assignment to her of a chose in action such as a bond or note with her husband's assent.35 The wife of a man civilly dead because of having been convicted of a felony, might contract as if unmarried. A married woman who has been absolutely deserted by her husband was generally held to be able to make valid contracts.

Like an infant, a married woman was liable for her torts and in respect to them might be sued jointly with her hus31 Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340.

32 Ferguson v. Bobo, 54 Miss. 121.

33 Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53.

34 Slayton v. Barry, 175 Mass. 513, 56 N. E. 574, 49 L. R. A. 560, 78 Am. St. Rep. 510.

35 Stevens v. Beals, 10 Cush. (Mass.) 291, 57 Am. Dec. 108.

band, but such tort must be separate from and something more than an indirect attempt to enforce an alleged contractual obligation. If a married woman fraudulently represented herself to be a spinster or a widow, she was probably liable to an action for deceit.

§ 47. Contract Rights of Married Women in Equity. Courts of equity regarded a married woman as capable of possessing property to her own use and independently of her husband's control. It was only necessary that the property had been conveyed to her as her separate estate, in order for her to be protected in the same by the courts of equity. From this granting of separate property rights, the equity courts came to hold that this separate property should be liable for her contractual obligations which were expressed in writing or with some formality. This came to include promissory notes, bills of exchange, any written agreement, and finally even oral agreements. Thus, a married woman was "considered in a court of equity as a feme sole in respect of property thus settled or secured to her separate use."'36

§ 48. Common-Law Disabilities Removed by Statute. In nearly all of the States, sweeping changes have been made by statutes respecting the property rights and contractual powers of married women. These various statutes differ so much among themselves that it is impossible to accurately state the American law as to the property and contractual rights of married women. In general, these statutes permit married women to sue and be sued as if unmarried and to acquire, hold, and convey personal and real property as freely as their husbands might.

§ 49. Husband's Liability for Wife's "Necessaries”. The liability of the husband for necessaries purchased by his wife does not arise merely because of their relationship, but must be founded on express authority, estoppel, or necessity. If the husband has continually permitted his wife to purchase articles on his credit from A, and has paid for such purchases, he is estopped to deny his wife's 36 Johnson v. Gallagher, 3 De Gex, F. & J. 494, 509, 45 Eng. Rep. Re. 969, 974.