Wohlford, 15 Gratt. 329.) The privilege is not lost by mere acquiescence even after he comes of age, until the statute of limitations runs (Wallace v. Lapham, 52 Miss. 191); but the sale may be confirmed by his conduct, amounting to an equitable estoppel (9 Wall. 627, 628; Davis v. Dudley, 70 Me. 236; Ferguson v. Bobo, 54 Miss. 121; Allen v. Poole, 54 Miss. 323), and of course by his express grant, or recital, and confirmation in another grant. (Phillips v. Green, 5 Mon. 344.)

The distinction between what the infant has actually done, and what he has promised or directed to be done, lost sight of entirely in the common maxims as to the effect of his contracts (because executed and executory contracts alike are included in that term), was at the basis of the old distinction between feoffment and grant. The former, an actual livery of seisin, is voidable only, because something has actually been done which requires to be undone before the parties are in statu quo; the latter, a mere declaration or written instrument, making no change in the subject-matter of itself, can be entirely disregarded, or held void, and will thus leave the parties in statu quo. (Thompson v. Leach, Carth. 435; Comb. 469; 3 Salk. 300; 2 Vent. 198; Yates v. Boen, 2 Strange, 1104; Ball v. Mannin, 1 Dow & C. 380; Dexter v. Hall, 15 Wall. 9, criticising 2 Blackst. Com. 291.)

The passage of Perkins, quoted by Lord Mansfield, 3 Burr. 1804, and so many others, which makes an infant's grant void if it does not take effect by delivery of his hand, is often understood as if it referred to the delivery of the deed itself (see Lord Mansfield's reasoning, etc., and comments by Judge Story, 10 Peters, 67–70); but there seems no doubt that he meant livery of seisin, or of the land itself; i. e., that he had in mind the primitive distinction between feoffments and other conveyances. In section 14 soon after he says: "If an infant give a horse, and do not deliver him with his hand, and

the donee take the horse by the force of the gift, the infant shall have trespass. But if he do deliver with his own hand not." (1 Mod. 137.) It is plain that nothing here depends on delivery of a deed, but on delivery of the thing itself. By a feoffment, or wherever there is livery of seisin, the infant actually transfers the land, and it cannot be treated as a nullity, though he have a right to take it again. But all other deeds by which an estate passes are void, and do not transfer the land (see Perkins, ? 15); but Lord Mansfield held a lease and release voidable only in Z. v. P., and thus destroyed the ancient distinction. (See statement by Bronson, J., in Fonda v. Van Horne, 15 Wend. 631; 30 Am. Dec. 77, 80.) The same phrase is used in Whittingham's Case, 8 Coke, 84, "if the infant makes a feoffment in fee, and executes it by livery of seisin by his own hands;" and this case illustrates Perkins, for it holds an infant's feoffment valid, if made so, but void if made by letter of attorney. (Whittingham's Case, 8 Coke, 89.) R. W. devised to his bastard daughter and her heirs. She enfeoffed S. and died without issue before her majority. The question was whether the land escheated to the queen; i. e., whether the infant's feoffinent was a valid transfer of the fee. On the assumption that it was made by livery of seisin by her own hands, the two chief justices held that it was valid. (p. 84.) But it afterward appeared that it was executed by letter of attorney made by the infant, wherefore it was resolved that it was void, and the land did escheat. (p. 89.)

The old doctrine is well stated in Viner, Lunatic, C. 3, 3, and Infant, D. E.; though it seems from D. 33, vol. 9, fol. 387, that it was repudiated in Thompson v. Leach, by Chief Justice Holt, at least as to infants. In D. 29, it is said that if an infant makes feoffment, and dies without heir, the feoffment is unavoidable, citing Y. B. etc.

The rule as to infant's contracts is generally stated as

follows: When the court can pronounce the contract to be for the infant's prejudice, it is void; when to his benefit, as for necessaries, it is good; when the contract is of an uncertain nature as to benefit or prejudice, it is voidable only at the election of the infant. (Per Eyre, C. J., in Keane v. Boycott, 2 Black. H. 511; Mansfield, C. J., in Zouch v. Parsons, 3 Burr. 1794; 1 Black. W. 575. See Williams v. More, 11 Mees. & W. 256, for criticism on voidable and void, with remark of Wooddesson, I. 239, and note 2, pointing out the objection, and in favor of holding all voidable.) The objections to the distinction of void and voidable are strongly stated in Clark & Co. v. Goddard, 39 Ala. 164; 84 Am. Dec. 777; followed in Laughan v. State, 55 Ala. 115. Compare authorities in 34 Am. Dec. 538, as to binding force of apprenticeship. But Woodruff v. Logan, 6 Ark. 276; 42 Am. Dec. 695, holds such a contract made by infant alone binding because beneficial.

The first mention of the infant's advantage as a ratio decidendi is in an odd dictum of Tankerville, 39 Ass. 1, who says: "If novel disseisin be brought by a guardian for the infant, though the infant in proper person disavows it, still nonsuit or retraxit shall not be adjudged, because the suit is presumed to be for his advantage; but if percase matter arises in the suit, whereby percase a disadvantage should be adjudged to the infant, then percase it would be good to surcease." The very terms, and especially the humorous repetition of "percase," intimate the discretion which the court reserves to itself, even in making an order which it can see to be for the benefit of the infant or against it. But this is a very different thing from judging whether a contract is for his benefit or not, and giving or taking away his rights in the exercise of such a discretion. If instead of saying that contracts prejudicial to infants are absolutely void, the books said merely that the courts would not enforce them, the modern rule would be better ex

pressed. Thus trading contracts were formerly said to be "absolutely void as against public policy." (Bayley, J., in Thornton v. Illingworth, 2 Barn. & C. 824. But see comments on this in Benjamin on Sales, ? 26, and Bennett's note, p. 37.) If the act is prejudicial only to an individual, then it is to be considered as voidable only by that individual. (Wilde, J., in Commonw. v. Weiker, 3 Met. 445; Allen v. Billings, 6 Met. 417; Parke, B., in Williams v. Moore, 11 Mees. & W. 256.) The cases holding infant's contracts void are collected and doubted in Parsons on Partnership, p. 18, n. e.

At common law the infant's ratification is needed to make an executory contract binding; and this of course implied that he had come of age. No obligation would be now judicially enforced against him, without such ratification (except in the states where by statute his contracts are presumptively valid, and need disaffirmance to discharge him, e. g., Iowa). But when the contract has been executed, and he seeks to get back money or property actually parted with, the case is quite different. He is allowed to repudiate his acts even during minority; and now the important question is, on what terms? We must distinguish here whether he is plaintiff or defendant. In the former case, at law, he could demand back all he had parted with by his voidable deed or act; but equity made him return the consideration, if he still had it, though it did not refuse relief if he had spent it.

Many conflicts may be solved by the distinction between rights in rem and in personam properly applied. When an infant repudiates his sale or purchase of chattels, he thereby restores the chattel to its original owner, so that a vendor to him may bring an action of replevin or of trover (not of trespass), not on any contract, express or implied, but on the original right of property and its breach, and he may bring a like

1 BLACKST.-69.

action against his vendee. The repudiation likewise destroys all obligation to pay money on the contract. But as to the money paid on such contract before repudiation, the case is different. There is no right in rem remaining or revived to a sum of money. It must be sued for,if at all, on an implied promise to repay it. Such a promise cannot be implied from any act of an infant. Can it from his act after reaching majority? Not without in effect affirming the original contract. Yet some courts have held it can be done if he was in possession of the money after he had reached majority, some without that qualification, and some have gone so far as to make it a defense-a condition of any repudiation. If one who has sold and conveyed land during infancy were required to return the purchase money before revoking the deed and recovering the land, this would merely convert the sale into a mortgage, and would in effect make a valid and binding mortgage by an infant, as was said in Manning v. Johnson, 26 Ala. 446; 62 Am. Dec. 732, with long note pp. 734–738, citing many dicta, which holds that infant may recover the land at law without returning the consideration, but with these important qualifications: (a) If the infant after he arrives at full age is shown to have been possessed of the consideration, and to have retained it an unreasonable time, or disposed of it, this will affirm his contract; (b) and the revocation of the contract by the infant at full age will allow the other party to sue for and recover at law the consideration paid him. a is in clear conflict with the cases that allow him to revoke until the statute runs; b is equivalent to enforcing the infant's contract to repay money lent; for if the other party wishes to provide an infant of means with spend. ing money, he has only to buy property of him at a low rate, and he will hold it virtually as mortgaged for the money paid on it. He will only take the risk of the infant's entire insolvency before revocation, in which