the modern law. An act of disaffirmance requires no special form.51 § 235. When the privilege may be exercised. It was early settled that an infant's conveyance of realty can be avoided only after he has attained his majority, though it has been said that he may enter during his minority and receive the rents and profits.52 Contracts relating to personal property, however, it is well settled may be avoided by him during his minority. Thus in a sale or a contract to sell, an infant seller 53 or buyer, 54 may repudiate his agreement while still an infant. The transitory nature of personal property makes this rule essential to his protection. And the rule is the same as to all other contracts which do not relate to real estate. 55 Avoidance 51 Phillips v. Green, 5 T. B. Mon. 344; Haynes v. Bennett, 53 Mich. 15, 18 N. W. 539; Allen v. Poole, 54 Miss. 323; Singer Mfg. Co. v. Lamb, 81 Mo. 221, 225; White v. Flora, 2 Overt. 426. 52 Zouch v. Parsons, 3 Burr. 1794; McCarthy v. Nicrosi, 72 Ala. 332, 335, 47 Am. Rep. 418; Harrod v. Myers, 21 Ark. 592, 76 Am. Dec. 409; Hastings v. Dollarhide, 24 Cal. 195; Watson v. Ruderman, 79 Conn. 687, 66 Atl. 515; Nathans v. Arkwright, 66 Ga. 179; Welch v. Bunce, 83 Ind. 382; Singer Mfg. Co. v. Lamb, 81 Mo. 221; Shipley v. Bunn, 125 Mo. 445, 28 S. W. 754; Emmons v. Murray, 16 N. H. 385; Bool v. Mix, 17 Wend. 119, 31 Am. Dec. 285; Kilgore v. Jordan, 17 Tex. 341; Wallace v. Leroy, 57 W. Va. 263, 267, 50 S. E. 243, 110 Am. St. Rep. 777. But see Chandler v. Simmons, 97 Mass. 508, 510, 93 Am. Dec. 117; Grissom v. Beidleman, 35 Okla. 343, 129 Pac. 853, 44 L. R. A. (N. S.) 411. 53 Shipman v. Horton, 17 Conn. 481; Shipley v. Smith, 162 Ind. 526, 528, 70 N. E. 803; Beickler v. Guenther, 121 Iowa, 419, 422, 96 N. W. 895; Bailey v. Barnberger, 11 B. Mon. 113; Towle v. Dresser, 73 Me. 252; Bloom ingdale v. Chittenden, 74 Mich. 698, 42 N. W. 166; Star v. Watkins, 78 Neb. 610, 111 N. W. 363; Carr v. Clough, 26 N. H. 280, 59 Am. Dec. 345; Stafford v. Roof, 9 Cow, 626; Bool v. Mix, 17 Wend. 119, 31 Am. Dec. 285; Bartholomew v. Finnemore, 17 Barb. 428; Gage v. Menczer (Tex. Civ. App.), 144 S. W. 717; Hoyt v. Wilkinson, 57 Vt. 404. See also Miller v. Smith, 26 Minn. 248, 2 N. W. 942, 37 Am. Rep. 407; Chapin v. Shafer, 49 N. Y. 407. 54 Riley v. Mallory, 33 Conn. 201; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53; Robinson v. Weeks, 56 Me. 102, 107; Edgerton v. Wolf, 6 Gray, 453; McCarthy v. Henderson, 138 Mass. 310; Hall v. Butterfield, 59 N. H. 354, 357, 47 Am. Rep. 209; Wooldridge v. Lavoie (N. H.), 104 Atl. 346; Hoyt v. Wilkinson, 57 Vt. 404. 55 Ex parte McFerren, 184 Ala. 223, 63 So. 159, 47 L. R. A. (N. S.) 543; Gonackey v. General Accident Fire & Life Assur. Corp., 6 Ga. App. 381, 65 S. E. 53 (a settlement of a claim under a life insurance policy); Adams v. Beall, 67 Md. 53, 8 Atl. 664, 1 Am. St. Rep. 379; Gillis v. Goodwin, 180 Mass. may be made by the infant after action brought against him at any time before judgment.56 Though an infant may thus avoid his sales, purchases, or contracts during infancy he can make no effective ratification until he becomes of age, 57 for an infant's ratification clearly can be no more effectual than his original bargain. $236. The whole transaction must be disaffirmed. An infant cannot disaffirm so much of a transaction as is unfavorable to him and treat the remainder as effectual. If he disaffirms his obligation to pay an agreed price, he thereby necessarily disaffirms his title to the consideration he received for that obligation.58 If he disaffirms his obligation to pay for goods delivered to him upon a conditional sale, he thereby forfeits any title and right to the possession of the goods 140, 61 N. E. 813, 91 Am. St. Rep. 265; Simpson v. Prudential Ins. Co., 184 Mass. 348, 68 N. E. 673, 63 L. R. A. 741, 100 Am. St. Rep. 560; Pippen v. Mutual Benefit Life Ins. Co., 130 N. C. 23, 40 S. E. 822, 57 L. R. A. 505; Covault v. Nevitt, 157 Wis. 113, 146 N. W. 1115, 51 L. R. A. (N. S.) 1092. In Michigan the exceptional doctrine prevails that an infant cannot avoid any of his contracts while still an infant. Dunton v. Brown, 31 Mich. 182; Armitage v. Widoe, 36 Mich. 124; Lansing v. Michigan Central R. Co., 126 Mich. 663, 86 N. W. 147, 86 Am. St. Rep. 567. But an infant purchaser was allowed while still an infant to rescind his contract on account of fraud in Stoll v. Hawks, 179 Mich. 571, 146 N. W. 229, 51 R. A. (N. S.) 28. 56 Wooldridge v. Lavoie (N. H.), 104 Atl. 346. 57 Chandler v. Simmons, 97 Mass. 508, 510, 93 Am. Dec. 117. And see infra, § 234. 58 Strain v. Wright, 7 Ga. 568; Thomason v. Phillips, 73 Ga. 140; Carpenter v. Carpenter, 45 'nd. 142; Shirk v. Shultz, 113 Ind. 571, 15 N. E. 12; Badger v. Phinney, 15 Mass. 359, 8 Am. Dec. 105; Fitts v. Hall, 9 N. H. 441; Heath v. West, 28 N. H. 101; Skinner v. Maxwell, 66 N. C. 45; Wallace v. Leroy, 57 W. Va. 263, 267, 50 S. E. 243, 110 Am. St. Rep. 777. In Evans v. Morgan, 69 Miss. 328, 12 So. 270, an infant engaged in trade became indebted for merchandise and when sued for the price avoided liability by pleading infancy. Thereafter he made a fraudulent sale of his property including the merchandise in question to his father. The sellers of the merchandise were allowed in a suit to equity to reclaim the property and being unable to identify it, because mingled with other property to subject the whole to a lien for its value. So in Betts v. Carroll, 6 Mo. App. 518, creditors of the seller were allowed to attach property in the infant's hands after disaffirmance. In Drude v. Curtis, 183 Mass. 317, 67 N. E. 317, 62 L. R. A. 755, both parties were infants. The buyer who had paid a portion of the price sued to recover it and attached the goods which had been the subject of the sale. It was held that the defendant's privilege excused him from liability either in tort or contract. which the bargain gave to him.59 Similarly if he purchases property and mortgages it back for the price, an avoidance of the mortgage avoids his title to the property, 60 and if he sells property so mortgaged, the purchaser necessarily takes it subject to the mortgage.61 If he enters into any contract subject to conditions or stipulations, he cannot take the benefit of the contract without the burden of the conditions or stipulations.62 An infant no more than an adult can recover the value of services voluntarily rendered by him as a gratuity.63 He might, however, it seems, reclaim a gift of tangible property which was still in existence, and if return was refused, recover its value. § 237. Other consequences of disaffirmance. When an infant exercises his privilege and rescinds a sale of personal property made to or by him, the title and rights of the parties in the goods are restored to the original status, as if no sale had taken place. Thus if an infant while still 59 Bennett v. McLaughlin, 13 Ill. App. 349; Robinson v. Berry, 93 Me. 320, 45 Atl. 34; Drude v. Curtis, 183 Mass. 317, 67 N. E. 317, 62 L. R. A. 755. 60 Heath v. West, 28 N. H. 101. See also MacGreal v. Taylor, 167 U. S. 688, 17 S. Ct. 961, 42 L. Ed. 326; Ready v. Pinkham, 181 Mass. 351, 63 N. E. 887; United States Corp. v. Ulrickson, 84 Minn. 14, 86 N. W. 613, 87 Am. St. Rep. 326; Uecker v. Koehn, 21 Neb. 559, 32 N. W. 583; Skinner v. Maxwell, 66 N. C. 45. 61 Ottman v. Moak, 3 Sandf. Ch. 431; Curtiss v. McDougal, 26 Ohio St. 66; Knaggs v. Green, 48 Wis. 601, 4 N. W. 760, 33 Am. Rep. 838. And see Weed v. Beebe, 21 Vt. 495. In Ross P. Curtice Co. v. Kent, 89 Neb. 496, 131 N. W. 944, an infant buyer under a conditional sale was held entitled to retain the goods until repaid the portion of the price which had been paid by him and to the return of which he had be come entitled by disaffirming the transaction. 62 Thus an infant who brought suit for breach of the contract of a telegraph company to transmit a telegram, was held bound by the stipulation that suit must be brought within sixty days. Western Union Tel. Co. v. Greer, 115 Tenn. 368, 89 S. W. 327, 1 L. R. A. (N. S.) 525. And similar stipulations in insurance policies have been held binding on an infant promisee, Mead v. Phoenix Ins. Co., 68 Kans. 432, 75 Pac. 475, 64 L. R. A. 79, 104 Am. St. Rep. 412, or beneficiary. O'Laughlin v. Union Central Life Ins. Co., 11 Fed. Rep. 280; Suggs v. Travelers' Ins. Co., 71 Tex. 579, 9 S. W. 676, 1 L. R. A. 847; Fey v. Independent Order, etc., Ins. Soc., 120 Wis. 358, 98 N. W. 206. An infant cannot avoid a single provision of a lease. Goin v. Cincinnati Realty Co., 200 Fed. 252, 118 C. C. A. 438. 63 Ramsdell v. Coombs Aeroplane Co., 161 N. Y. S. 360. a minor disaffirms a purchase made by him and restores the property, he cannot thereafter reclaim it on the ground that he avoids his disaffirmance.64 The disaffirmance is not regarded as a new contract of rescission or transfer of title by the infant, but rather as a destruction or wiping out of the original contract or transfer.65 If an infant acquires property which is subject to certain burdens, he can only avoid the burdens by giving up the property. Thus while he retains leased property he must pay the rent; 66 and if he is a stockholder and retains his stock, he is liable for calls or assessments upon it.67 64 Edgerton v. Wolf, 6 Gray, 453. But see Newry, etc., Ry. v. Coombe, 3 Ex. 565; Northwestern Ry. v. McMichæl, 5 Ex. 114, 127. See also infra, § 250 ad fin. 65 "The disaffirmance of a contract made by an infant nullifies it and renders it void ab initio; and the parties are returned to the same condition as if the contract had never been made." Grissom v. Beidleman, 35 Okla. 343, 129 Pac. 853, 857, 44 L. R. A. (N. S.) 411. See also cases cited infra, § 238, n. 68. Whether such a destruction of an infant's transfer of real estate by deed can be accomplished without a new transfer may be questioned. In McCarty v. Woodstock Iron Co., 92 Ala. 463, 8 So. 417, 12 L. R. A. 136, an infant grantee disaffirmed his purchase and the court held this did not divest his title but that the grantor could compel a reconveyance by bill in equity. In Pippen v. Mutual Benefit Life Ins. Co., 130 N. C. 23, 40 S. E. 822, 57 L. R. A. 505, the administrator of an infant policy holder who had surrendered his policy of life insurance and received its cash surrender value sued for the face of the policy after the death of the insured. The court held the original contract had been de stroyed on the principle stated in the text. It would seem, however, that the plaintiff's contention was sound that the surrender of the policy for its cash surrender value (not for the total premiums which the infant had paid) was the making of a new contract not a disaffirmance of the original one. Cf. Gonackey v. General Accident Fire & Life Assur. Corp., 6 Ga. App. 381, 65 S. E. 53; Lansing v. Michigan C. R. Co., 126 Mich. 663, 86 N. W. 147. In McCarty v. Woodstock Iron Co., 92 Ala. 463, 8 So. 417, 12 L. R. A. 136, the court said of a disaffirmed contract: "The contract having been void cannot be revived, except by mutual consent." 66 Ketsey's Case, Cro. Jac. 320; Kirton v. Eliott, 2 Bulst. 69; Northwestern Ry. Co. v. M'Michal, 5 Exch. 114, 123, 124. But see Flexner v. Dickerson, 72 Ala. 318. 67 Northwestern Railway Co. v. M'Michael, 5 Exch. 114. The infant, either before he becomes of age or within a reasonable time thereafter, may avoid liability by repudiating the transfer of stock to himself. See Cork, etc., Ry. v. Cazenove, 10 Q. B. 935; Mitchell's Case, L. R. 9 Eq. 363; Ebbetts's Case, 5 Ch. App. 302. § 238. Restoration of consideration. From what has been said it is evident that if an infant has received consideration for a transfer of money or goods by him, and still has that consideration, he cannot disaffirm his transfer without vesting a right in the other party to recover the consideration. It does not logically follow, however, that the infant must tender it back as a condition precedent of his right to disaffirm. Rather it would seem that his privilege allows him to disaffirm the whole transaction, leaving upon each party the burden of demanding and regaining what he has parted with.68 A number of decisions, however, require the infant to offer to surrender so much of the consideration, as is still in his possession, as a condition of disaffirmance.69 If the infant, having used or parted with es Eureka Co. v. Edwards, 71 Ala. 248, 46 Am. Rep. 314 (unless the suit is in equity); Sanger v. Hibbard, 104 Fed. 455, 43 C. C. A. 635; Strain v. Wright, 7 Ga. 568; Carpenter v. Carpenter, 45 Ind. 142; Clark v. Van Court, 100 Ind. 113, 50 Am. Rep. 774; Chandler v. Simmons, 97 Mass. 508, 514, 93 Am. Dec. 117; Drude v. Curtis, 183 Mass. 317, 318, 67 N. E. 317, 62 L. R. A. 755; Dawson v. Helmes, 30 Minn. 107, 14 N. W. 462; Tower-Doyle Commission Co. v. Smith, 86 Mo. App. 490; Fitts v. Hall, 9 N. H. 441; Oneonta Grocery Co. v. Preston, 167 N. Y. S. 641; Millsaps v. Estes, 137 N. C. 535, 50 S. E. 227, 70 L. R. A. 170, 107 Am. St. Rep. 476. See also St. Louis, etc., Ry. v. Higgins, 44 Ark. 293; Wright v. Buchanan, 287 Ill. 468, 123 N. E. 53; Ross P. Curtice Co. v. Kent, 89 Neb. 496, 131 N. W. 944, 52 L. R. A. (N. S.) 723; Chandler v. Jones, 172 N. C. 569, 90 S. E. 580, and cases in the two following notes. But in Lamkin v. Ledoux, 101 Me. 581, 64 Atl. 1048, 8 L. R. A. (N. S.) 104, the court not only held a repudiating infant not liable for the price of goods which he retained after attaining his majority, because the Me. Rev. St., c. 113, § 2, provides that no action shall be maintained against an infant on any contract not relating to necessaries or real estate unless after reaching twenty-one years he ratifies the contract in writing, but said "The merchandise became the defendant's property upon the uncondition sale and delivery to him and it all remained his property though he failed or refused to pay for it." 69 Re Huntenberg, 153 Fed. 768; Towle v. Dresser, 73 Me. 252; Brantley v. Wolf, 60 Miss. 420; Lake v. Perry, 95 Miss. 550, 566, 49 So. 569; Berry v. Stigall, 253 Mo. 690, 162 S. W. 126, 50 L. R. A. (N. S.) 489; Zuck v. Turner Harness Co., 106 Mo. App. 566, 80 S. W. 967; Star v. Watkins, 78 Neb. 610, 111 N. W. 363; Lemmon v. Beeman, 45 Ohio St. 505, 509, 15 N. E. 476; Price v. Furman, 27 Vt. 268, 65 Am. Dec. 194; Jones v. Valentines' School, 122 Wis. 318, 320, 99 N. W. 1043. So in Lane v. Dayton, etc., Co., 101 Tenn. 581, 48 S. W. 1094, it was held that an infant could not avoid an accord and satisfaction without first offering to return the consideration he had received, if he still had it. But see Gilkinson v. Miller, 74 Fed. 131; Gonackey v. General Acci |