
    *John Stafford, by his guardian and next friend Spencer Stafford, plaintiff in error, against Elisha Kane Roof, defendant in error,
    ALBANY,
    Dec. 1827.
    An infant having a general guardian, sold a horse belonging to him, the infant; but there was no proof that he delivered the horse with his own hand. The vendee afterwards offered to sell the horse. Held, that trover lay by the infant even before coming of age, without any demand of the horse from the vendee.
    And per Jones, chancellor, the sale is void, no manual delivery being shown. The sale and actual delivery of a personal chattel by an infant is voidable before he attains the age of 21 years. Otherwise of land.
    On error from the supreme court. (7 Cowen, 179, S. C.) John Stafford brought trover for a horse against Roof, in the C. P, of the city of Albany, called the mayor’s court; and the cause was tried there ill October, 1824. On the trial, the plaintiff below proved that in July, 1834, he owned the horse, and on the 23d of that month sold it to the defendant below; and took his note in these words: “ For value received, I promise to pay John Stafford fifty dollars in liquor at my bar.” On this note the following payments were endorsed by the plaintiff below. July 26th, 1824, $4. Same day, $1 25. July 30th, cash, $5 50. August 4th, cash, $18 00. August 7th, $12 34. The defendant below also proved, that at the time of the purchase of the horse, the plaintiff below owed the defendant below between thirty and forty dollars for board, lodging, carriáge-hire, and liquor. The plaintiff below proved that some time after the sale of the horse, the defendant below offered the horse for sale as his own property, to one John Griffith, who declined to purchase; and farther, that the plaintiff below was but 19 years of age at the time of the sale of the horse ; that Spencer Stafford was his general guardian.
    The defendant below moved for a nonsuit, on the ground that no conversion had been proved; and also on the ground that it was not competent for the plaintiff" below to avoid his contract while yet under age. The motion was overruled; and the defendant below excepted.
    *The defendant below then proved a receipt given by the plaintiff below, dated August 27th, 1824, during the pendency of the suit, in full of the note; and that the plaintiff below had disavowed the suit.
    The court below charged that the plaintiff below had a, .right to bring his action while yet an infant; that the contract was void; that the defendant below was not entitled to have any of the payments made by him allowed, except such as were in necessaries ; and that the plaintiff was entitled to recover. The defendant below excepted. Verdict for the plaintiff below of $55, upon which the mayor’s court gave judgment. The defendant below brought error to the supreme court, who reversed the iudgment on the sole ground that an infant cannot avoid his executed contract during his minority. Upon which the defendant below brought error to this court.
    The reasons for the judgment of the supreme court were now assigned, as in 7 Cowen, 180 to 185, S. C.
    
      Jacob Lansing, for the plaintiff in error,
    made the following points : 1. The sale was void, there being no benefit or semblance of benefit to the infant; no evidence that the delivery of the horse by the seller to the buyer was personal, actual, or manual; and beside, the note'was void, as being within the spirit of the act regulating taverns. (1 R. L. 180, s. 14.)
    2. The contract of sale was voidable by the infant ' during his minority.
    3. The attempt to dispose of the horse by the defendant below was a conversion.
    4. The dominion of all the infant’s property was in the guardian; and the infant could do no act affecting the right to it without the guardian’s consent.
    
      A. Taber, contra.
   Jones, Chancellor,

said, it is true in general that the deed of an infant is voidable merely, when delivered with his own hand, and is of equal validity, whether it be of lands or chattels. Some of the old writers seem to make a distinction between deeds and other contracts of infants accompanied by *manual delivery ; but the distinction is now discarded, and the same effect is given to both.

They are not void, but voidable, where any act of delivery is done by the infant calculated to carry an estate; and J ’ this whether the contract be beneficial to the infant or not, But a manual delivery seems in such case to be essential]¡ None was shown in this case. The fact of possession -by’1 the vendee would be evidence of delivery in the case of an adult; but in ease of an infant vendor, there should be strict proof of a personal delivery. An infant cannot make an attorney. The appointment would be void; and -there being no proof of actual manual delivery, the contract would seem to be void. The agreement to sell conferred no right upon the vendee to take. The mere agreement of the i.nfant to sell would not protect the vendee against an action of trespass for taking the horse. The taking would be tortious; and in, itself a conversion.

But suppose the „sale to be merely voidable; could the infant or his guardian avoid it before he arrived at 21 years of age ? The general rule is, that an infant cannot avoid . . . ms contract executed by Jnmselr, and which is therefore voidable only while he is within age. He lacks legal discretion to do the act of avoidance. But this rule must be taken with the distinction that the delay shall not work unavoidable prejudice to the infant; or the object of his privilege, which is intended for his protection, would not be answered. When applied to ,a sale of his property, it must be his land; a pase in which he .may enter and receive the profits until the power of finally avoiding shall arrive ; and such was the doctrine of Zouch v. Parsons, (3 Burr. 1794.) . Should the law extend tfie same doctrine to sales of his personal estate, it would evidently expose him to great loss in many, cases; and we shall act up to the principle of protection much more effectually by allowing him to rescind while under age, though he may sometimes misjudge, and avoid a contract which is for his own benefit. The true rule, then, appears to me to be this ; that 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 mean *time, the infant, or his guardian for him, has the right to exercise the power of rescission immediately. Now the common lawj gives no action or other means by which the mere possession of personal property can be reclaimed, and held subject to the right of avoidance.

Beside, in this case the infant had a general guardian. It may wed be doubted whether he could make any contract of sale which should bind him, for any purpose, during his wardship.

Stebbins, Senator. Whatever may be the correct opinion (and I am not prepared to express any) upon the question■ discussed by the supreme court in this cause, and in the opinion of his honor the chancellor, as to the right of an infant to avoid, during his minority, a sale of property made by him, there is another point upon which I must place my vote.

The plaintiff brought his action of trover against the defendant in the mayor’s court, for the horse which he had sold him during his infancy, and recovered. The defendant took a bill of exceptions upon the ground, among others, that no conversion was proved.

The cause coming before the supreme' court upon this bill of exceptions, the judgment is reversed, for the reason that the plaintiff, being an infant, could not legally avoid his contract of sale, until he should become of age. This court is possessed of the cause upon a writ of error brought to reverse the judgment of the supreme court, and to restore to the plaintiff his judgment obtained in the mayor’s court.

It is obvious, therefore, that if no conversion of the horse was proved in the mayor’s court, the judgment of that court ought to have been reversed by the supreme court, for that reason as well as for the reason assigned by them; and if the exception was well taken by the defendant, the judgment of the supreme court ought now to be affirmed.

The only evidence of conversion is, that the defendant upon one occasion, offered to sell the horse ; and this, in my "judgment, dees not amount to a conversion. There is no evidence of any tortious taking, or demand and refusal.

The defendant came into possession as a purchaser. The sale was not void, but voidable by the infant; and conceding, therefore, that he may avoid it before coming of age, it is certainly good until avoided; and the possession of the defendant must have been rightful until such avoidance. His offer to sell, then, can be no conversion.

The first evidence, or notice of his election to avoid the contract which the plaintiff seems to have given, was the commencement of this suit. I think he should first have given notice of his election to avoid the contract, and demanded the horse, and waited for a refusal to deliver, as evidence of conversion, before he commenced his prosecution ; and for this reason I am in favor of affirming the judgment of the supreme court.

Jones, Chancellor,

said his attention had been mainly employed upon the question discussed by the supreme court. He had attended but slightly to that branch of the case examined by the honorable senator; nor did he feel prepared to express himself strongly upon the question whether an offer to sell a chattel by one who comes lawfully into the possession of it, shall be holden a conversion. He inclined to think that it was an act of such control, inconsistent with, and in defiance of the rights of the true owner, as to be, prima fade, evidence of a conversion.

But here is a sale set up as having been made by an infant under the care of a general guardian, and accompanied with no evidence whatever of a manual delivery by the ward. He had remarked that such a delivery cannot he intended, though it would be otherwise in the case of an adult. It then stands before us, at best, as an infant contracting to sell; and. the vendee taking possession in virtue of the contract, -without its being followed up by-anyact of 'delivery. Such a taking would he tortious, and a conversion in itself.

He'was of opinion, on the whole case, that the judgment of the supreme court should be reversed.

*For reversal, The Chancellor, Allen, Crary, Elsworth, Enos, Gardiner, Haight, Hart, Jordan, Lake, McMartin, Waterman, and Wilkeson, Senators.

For affirmance, Burrows, Dayan, McCall, Nelson, Oliver, Smith and Stebbins, Senators.

Judgment reversed. 
      
       Bool v. Mix, 17 Wen. 119. Slocum v. Hooker, 13 Barb. 536
     