Cresinger v. Lessee of Welch. 1846. ance of what was understood to be the rule of law, as estab- IN BANK. lished by frequent determinations on the circuit. Now, I have Dec. Term, no hesitation in saying, that, in my opinion, the rule contended for by plaintiff's counsel would be beneficial, and highly conducive to the public interest. It would prevent the practice of purchasing doubtful titles. It might interfere with the interest of keen-sighted speculators, who make it a business to hunt up and purchase in such titles, but it could do no injury to the honest man. But although such is my opinion, still, acting in a judicial capacity, I cannot consent to change the rule. Such change would interfere with a multitude of land titles heretofore acquired, and acquired too with a knowledge of the law, as expounded by the Court. But there is a body which can apply a remedy which shall operate hereafter; that body is the General Assembly. And, to me, it is a matter of surprise, that we have not an act upon our statute books declaring void sales made under the circumstances referred to by counsel in their second request to the Court. But until some statute of the kind is enacted, we feel ourselves bound by the law as heretofore settled. Third and fourth: The third and fourth instructions requested of the Court were, in substance, that the execution by Cyrus C. Lupton and William H. Lupton, of the deed to the defendant in error, did not, on their part, amount to a disaffirmance of the former deed to Kline, by them executed while infants. This the Court refused to do, and held that such was not the law. Much has been said in the books with respect to the deeds of infants conveying land, whether they were void or merely voidable. The better opinion, as we believe, is, that they are merely voidable; and it was so held in the case of Drake and wife v. Ramsey et al., 5 Ohio Rep. 251. Such being the law, the deed of an infant will hold good until some act has been done by him to avoid it, although there has been no express act of affirmance, after his arrival at full age. But what the act of disaffirmance shall be, is a matter of more doubt. Dec. Term, 1846. Cresinger v. Lessee of Welch. IN BANK. If it be one of equal solemnity with the original act of conveyance, it would seem to be sufficient. Thus, in England, if a feoffment be made by an infant, he can only avoid it by entry. He must be in possession in order to make the feoffment, for that is not done without livery of seizin. He must then again enter to avoid the feoffment; and perhaps this alone would not be sufficient. But in this country, and especially in this State, this mode of conveyance is not adopted. Lands here are conveyed by deed of bargain and sale, and deeds of other descriptions. Livery of seizin is not known in practice, and is entirely unnecessary. In the case of Drake and wife v. Ramsey et al., before referred to, the Judge, in delivering the opinion of the Court, says: "Some of the books apparently suppose that the act of ' avoidance must be of equal solemnity with the act of grant; 'but I cannot find it to be expressly decided, except in cases ' of feoffments, where a peculiar feudal principle renders it necessary. We believe that an entry, suit, or action, a sub'sequent conveyance, an effort to restore the parties to their original condition, or any act unequivocally manifesting the 'intention, would render the evidence effectual," &c. It is said, however, that this question did not properly arise in that case, and, therefore, that this dictum of the Court cannot be relied upon as authority. It was the deliberate opinion of the Court, in a case where one of the principle questions was, what act would amount to the avoidance or disaffirmance of a deed executed by an infant. True, the act relied upon in that case, and which was held to be sufficient, was the commencement of an action of ejectment. That a subsequent conveyance would amount to a disaffirmance, has been decided in the Supreme Court of New York and of the United States; 11 John. Rep. 541; 14 John. Rep. 128; 10 Peter's Rep. 59. In fact, I cannot well conceive what would be a more decisive act of disaffirmance than the conveyance of the same land to another person. It would be conclusive evidence, that the person making such conveyance did not intend to be bound by his deed made in infancy. Cresinger v. Lessee of Welch. 1846. Fifth: The Court was next requested to charge the jury, IN BANK. "that lapse of time less than twenty-one years, after the minor Dec. Term, 'comes of age, may furnish evidence of acquiescence, and con'firm the title." In response to which request, the Court charged, that the lapse of time less than twenty-one years was not of itself evidence of acquiescence, but might be evidence of such acquiescence in connection with other facts and cir cumstances. In this particular, I understand the Court to have stated, in substance, that lapse of time alone would not amount to an affirmance, on the part of the grantor of the deed executed in infancy, unless that lapse of time amounted to twenty-one years. Such was the opinion of this Court, as expressed in the case of Drake and wife v. Ramsey. But in that case, as in this, the Court held, that the lapse of a less period of time, taken in connection with other circumstances, might amount to a confirmation. The idea might have been conveyed in different language, but I do not see wherein the Court violated any principle of law in this particular. Sixth The next request made to the Court, was, to charge, "that the right to disaffirm a deed made during minority, may be extinguished by any act done under a knowledge of his right, which demonstrates a willingness to be bound by the con'tract; or, by continuing after acquiring such knowledge, to enjoy any benefit, profit, or privilege, under the contract, ' after they attained full age." The Court admitted such to be the law, but added, "that retention of the purchase money in 'this case, was not, of itself, an act demonstrating a willingness 'to be bound by the contract; and that a minor was not bound to return the purchase money before disaffirming his deed 'made during minority." It can hardly be supposed that any one will seriously contend, that an infant who has conveyed land during infancy, cannot disaffirm his contract before returning the money which he has received upon that contract; nor that the retention of the money is demonstrative evidence of a willingness to be Cresinger v. Lessee of Welch. IN BANK. bound by the contract. If I am correct in this, then it follows Dec. Term, that there was nothing erroneous in the opinion expressed, in itself considered. It was not a violation of law. 1816. Whether it was proper, under the circumstances, to make the statement, is Seventh Counsel for plaintiff in error next requested the Court to charge the jury, "that the silence of the party after 'coming of age, might be evidence of acquiescence and confirmation, although for a less period than twenty-one years ' after coming of age." This is but a reiteration, in substance, of the request which had been before made, and which is noted on the bill of exceptions as being the fifth. The words are not identical, but there is no difference in substance. The Court also responded as before, stating, "that silence for ' a less period than twenty-one years, was not, in itself, unless 'connected with other facts and circumstances, evidence of Cresinger v. Lessee of Welch. Dec. Term, 1846. 'assent to, or confirmation of, a deed made during minority." IN BANK. As to these three last points, I do not see that there was any thing substantially wrong. The ideas might have been conveyed in different language, and, possibly, in language more appropriate. The whole substance and effect of it is this, that where an infant conveys land by deed, although the contract is voidable, and must be disaffirmed after he arrives at full age, yet, that he has the length of time allowed by the statute of limitations, within which to disaffirm. But if, in the meantime he has done other acts which show a manifest intention to confirm the deed so executed, those facts, taken in connection with the lapse of time, although that be less than twenty-one years, will amount to a confirmation. It was so held by this Court in the case of Drake and wife v. Ramsey, and so held in the cases cited from Johnson's Reports. The only other matter ruled by the Court upon one of these three last points, was, that an individual who would disaffirm a conveyance made by him during infancy, need not, as a condition. precedent to the disaffirmance, refund, or offer to refund, the purchase money. These are not the words, but it is the substance and effect of the ruling. Upon the whole, we see nothing erroneous in the charge of the Court complained of, and the judgment is affirmed. Judgment Affirmed. BIRCHARD, J., dissenting. The deed of a minor is universally held voidable, not absolutely void. Infancy is a personal privilege, and can be taken advantage of only by the infant after arriving at years of maturity. He must do some act in avoidance of his deed, before the person occupying lands as the rightful owner, having entered under the deed, can be put in the wrong, and proceeded against as a trespasser. This position is not denied. It is admitted. Cresinger, and those under whom he claimed, had held and improved the land in their own right, as lawful owners, under the deed of the Luptons, executed during minority; and no act or movement had been made by them to disaffirm the deed, for near ten years. Welch, * |