
    Margaret Lester, Administratrix Bannister Lester, deceased, vs. Hugh Frazer, Administrator Benjamin P. Frazer, deceased.
    Heard before Chancellor Desaussure, Georgetown, February-Term, 1836.
    The bill and answer state the case. The first question which arises under it is, whether the real estate of the late Mrs. Frazer, the wife of the Rev. Hugh Frazer, included in her marriage settlement, made when she was a minor, passed and goes under that instrument, and according to its provisio.is ; or descended to her son the late B P. Frazer, her only child, and was subject to his debts. It appears that she died when still a minor, and her son died in 1829, leaving alive two children. The doctrine on which this case depends has been much discussed, and a good deal of difference of opinion has prevailed in the courts. In Drury and Drury, 2d Eden, 39 — -after seven days argument of the ablest counsel in England, it was decided in 1761, by the lord Chancellor North ingtoo, among other things, that the statute Hen. 8th, extends to adult women only, and that notwithstanding a jointure on an in* fant, she may waive the jointure, and elect to take her dower — also that a woman being an infant, cannot by any contract previous to her marriage bar herself of a distributive share of her husband’s personalty in case of his dying intestate. The lord chancellor in his elaborate argument, stated (page 59) the question to be, whether sitting m Court of Equity he could bind an infant to a specific performance of an agreement, aud bar her from claiming her dower at law, aud her share ot the personal estate ; and he came to the conclusion, that he could not; tór he could not be satisfied that the statute enabled infant girls to agree to settlements to bind themselves, and to bar them of their legal provisions — dower. On an appeal to the House of Lords, it was directed, after argument by very able counsel, that the opinion of the judges should be taken on the following question, whether a woman married under the age of twenty-one years, having before such marriage a jointure made to her in bar of dower, is thereby bound, and barred of dower, within the statute, 27 Hen. 8, ch. 10 ? (which statute is of force in this State.) .There were seven judges present who delivered their opinions seriatim — of these, three were of opinion that she would not be bound, and barred, which was in affirmance of the lord chancellor’s decree. Four of the judges were of opinion that she would be barred, which was against the decree. Lord Hardwicke, sitting in his capacity of a member of the House of Lords, (having long resigned his office as chancellor,) concurred fully with the majority of the jud ies, in the opioi in that an infant, having a proper jointure made, is bound, and barred by it. Lord Mansfield, sitting as a member of the House of Lords, and of the court, concurred in this opinion, and the decree was reversed. Mr. Eden, the reporter and gra sdson of Lord Norlhington, in a valuable note at the end of the case, page 75, states that great doubts were after-wards entertained of the propriety of the decision of the House of Lords ; and that Lord Thurlow, is said to have expressed himself strongly in favor of Lord Northington’s opinion. But this did not extend to the real estate of the infant — sec 18 Ves. 275. Mr. Eden then goes on to state, that the result of subsequent authorities is, that an infant cannot he hound hy any article entered into during her minority, as to her own real estate ; which nothing but her own act, after the period of majority, can tetter, or affect. But that she may be barred of her own right of dower by a competent and certain provision by way of a jointure ; and her interest in mouey may be bound by agreement on marriage, which is for her benefit— and Mr. Eden cites the decided cases on which these conclusions are founded. Mr. Atherly, in his treatise on Marriage Settlements, page 28 — 9, was of opinion that the weight of authorities, was, that a female infant has a right to bind her real estate by marriage settlement. But Chancellor Kent, 2d vol. Com. page 244, consi* ders the doctrine settled by Lord Eldon’s decisions in Milnor and Harwood, 18 Ves. 259, and on examining that case, he says, (page 275,) that even Lord Thurlow was of opinion that a female infant could not be barred of her own real estate. 1 Bro. c. c. 106, 115. By this statement it appears then tobe settled by the English authorities, that though an infant may be barred of her dower in her husband’s land by a proper jointure, and of her interest in her personal estate by an agreement on marriage, she cannot he hound as to her own real estate. Consequently, the settlement of the real estate of Miss Porter by her marriage settlement did not bind her, and she dying whilst an infant, never was bound. Yet, though I take this to be the settled law, I may be permitted to add, that by the practice of this State it has been usual to include the real estate ©t infants in marriage settlements, l m not aware that these have ever been questioned, or their binding efficacy op the female infant, ever decided on. It may be worth considering whether it would be proper to disturb that practice, or bring its validity into question ; until, however, a decision be made by the highest authority, I feel bound to adhere to the doctrine as settled by the decided cases.
    I must, therefore, consider the l'eal estate of the late Mrs. Fra-zer, (wife of Rev. Hugh Frazer,) as not bound by the marriage settlement made in her minority ; she having died a minor, and consequently the same never having been legally confirmed by her. Hex-real estate, therefore, descended on her death according to law, one third to her husband and two thirds to her infant sou, B. P. Frazer. Having come to the conclusion that the real estate of Mrs. Frazer descended at her death according to law, by which her son became entitled to two thirds thereof, on his death, his share descended to his children, subject however to his debts.
    It is to subject the lands descended to B P. Fnzer, deceased, to the payment of his debts, that this bill is filed, and his infant children made parties to the amended bill The demand of the complainant is founded on a note of hand, alleged to have been signed by the said B. P. Frazer in his lite timo, and made payable to the late B. Lester, whose administratrix seeks payment, thereof from the estate of the said B. P. Frazer. The Rev. Hugh Frazer, who administered on the estate of his son B. P. Frazer, and who is entitled to one third of the estate of his late wife, in his answer to complainant’s bill, admits that he has possessed himself, as admi ¡istrator, of the personal estate of his late son, which, however, was inconsiderable, and that he is also possessed of the real estate of his late wife, called Clegg’s Point, to which, by the present judgment of the court, his son was entitled to two third pai'ts. With respect to the personal estate, Mr. Frazer, the defendant, admits that he is accountable for the same to the creditors of his son Benjamin, but that he has paid debts having legal priorities, to a much larger amount than the actual value of said personal estate, and that xvith regard to the real estate called Clegg’s Point, the same was levied on, and sold by the sheriff of Georgetown district, some years ago, to wit, in the year W24, and during the life time of his son Benjamin, under judgments and executions against the said Benjamin, and that he became the purchaser thereof, at and for the sum of three thousand dollars, and has ever siuce held the said land, having paid the said sum, which has gone m part satisfaction of the numerous ere-ditors of the said B. P. Frazer; many of whom had liens long before the claim of the complainant by a note in i.830, was even in existence. Wherefore, evenif the demand of the complainant had been established, which is denied, there remain no funds in the hands of defendant., out of which such demand could be satisfied. Upon these, allegations in tne answer, it would be in the course of the court, that a reference should be had before the commissioner, who, (after the complainant had established his demand,) should examine the accounts of the administrator and report thereon. But another question has been raised by the bill and answer, which requires to be discussed and decided.
    
      It is alleged by the bill, that certain creditors of the said B. P. Frazer, having recovered judgments against him. levied upon a plantation on Wuccemaw, commonly called Clegg’s Point, as the property of the said Bei.j inm., and at the sale thereof, by the sheriff of Georgetown disu-ict, divers of the creditors, of the said Benjamin, were present, and ready and willing to bid for the said plantation, as much money as would have amply paid all the judgments against the said Benjamin P. Frazer, and left the personal estate free, to be applied to the payment of the other debts of the said Be-jamm; at which time and place the said Hugh Frazer, undertook aud promised to the said creditors, that if they would permit him to bid off the said plantation, for a sum much less than the actual value, which they would have otlierw ise bid, that he the said Hugo Frazer, as agent aud trustee of the creditors, would sell the said plantation for 11s full ai-d actual value, and apply' the proceeds to the pay mem of tneir debts ; hut that the said Hugh Frazer, has received the rents and proliis of the said plantation, and has not resold the same, or applied me proceeds of the plantation to extiugusn ihe said judgments, a. d oilier creditors, and apply the remainder oi the an-sets in his hands to pay the debt due to the deceased B, Lesier — and the bill prayed relief thereon. The amended bill set loi-.h more lulty the grounds of the claim, and of the complaint again si ihe said Hugh Frazer, and required a full answer to its allegations us to the estate which his son, the said Benjamin P. vt as emitted, and insisted upon a discovery thereof, aud the application ot the same to pay the debts of the creditors ; more especially as he the said i ugh, liad purchased in the lands at a very low rate and without competition, avowedly on the ground that he would pay the creditois of his said son, the full value ot the said lands.
    The answer of the Rev. Hugh Frazer, as administrator of B. P. Fra-zer, admitted mat the personal estate came into his hands to a small amount, which had been applied t.< pay debts, or to be accounted for. That with respect to the real estate, which had originally belonged to his wife, the late Mrs. Frazer, even admit, ting that it descended to his son, B. P. Frazer, (which was questionable under the marriage setileme.it,} he. the defendant, had become the bona fide purenaser thereof, and that with respect to the alleged promises to the creditors; aud the breach thereof, and fraud practiced on them, the said Hugh Frazer, denied the same, and insisted, that so far from the said allegations being true, he did not know that any person intended or wisiied to make a bid for the lands, and he deterred no person from being a purchaser. That he may have said at the sah , as he has often said since, that he would be glad to make an advantageous sale of Clegg’s Point, in order that he might be euabh d to pay his sou’s debts, but ihat this was uniformly a voluntary declaration, and that he believes the sum of three thousand dollars, (at which the place purchased, was knocked off to him,) was just that annum more than the i iterest of his son therein. 'Ihe defendant further answeri g, stated, that though he was under no obligation to the creditors- of his deceased son,, he has constantly made efforts to make sale of the plantation at Clegg’s Point, always intending to appropriate the proceeds thereof, to the payment of his son’s debts, and although he has not been able to do so, he has since the sale of the sheriff, and in anticipation of the sale of the premises which he hoped to make, paid and advanced to the 'creditors of his said son, fifteen thousand dollars in addition to the three thousand dollars, paid to the sheriff, selecting such as he deemed to be just.
    The allegations and the answer, involve a serious question — it is no less than a charge of misrepresentation, and an attempt to bold to bis own use, at a very low price, a valuable estate, which is worth a very large' sum of money, sufficient to pay the debts of his son ; and which might have brought its full value if the creditors had not been lulled tuto a false confidence, by the assurances of the defendant, that he would, if allowed to purchase the land without competition at a low rate, make a resale at the full value, for the benefit of the creditors. The answer positively denies the allegations, especially as they relate to the tract called Clegg’s Poi-t. fbe answer of a defendant, especially when made by a man of high character, as in the present case, is entitled to great weight, and cannot be set aside, but by great and preponderating evidence. To' rebut the answer, the complainant produced at the hearing of the cause, a letter from the defendant to the sheriff, Mr. Huggins dated 6th July, 1.824, afier lie had made the purchase of the land at three thousand dollars, in which he states that he had been informed (by a letter,) that the sheriff was directed to advertise and re sell the Waceamaw lands, which orders he attributed to some misunderstanding among the parlies, not knowing that his sole view in purchasing the land, was to dispose of the same at some future day, at their intrinsic value, which would more than pay all de. mands against his son Benjamin ; he adds that he had had a conversation with the attorneys and others, who were all willing to wait (or payment. That the same form was gone through, for the only bid was made by a iriend of his for three thousand dollars, which he promises to pay speedily. At the hearing of the case, Mr, Shaw was examined for the complainant, and testified that he was present at the sale of one of the plantations oí the lands of B. P. Frazer, in the summer, (warm weather;) could not say which of the tracts of land, he was himself a judgment creditor of B. P- Frazer. He had various conversations with Mr. Hugh Fra-zer, on the subjectMr. Hugh Frazer said, his object in becoming the purchaser of his son’s property, was to bid it off for the benefit of the creditors of his son, and not with any view to benefit him. self, and he wished the creditors not to interfere with hi« bidding.The witness told Mr. H. Frazer, that any bid would pay his demand, as he was among the earliest ol the creditors, and, therefore, had no interest in entering into any arrangements, and his means being smalt, he could not bear delays ; Mr. Frazer said there wore persons who induced his son to make improper purchases, a. d if he had the control of his property, it would enable him to prevent such improper dealings, The witness attended the sale on the Same day ; Mr. Marvin was the only person who opposed Mñ Hugh Frazer, in bidding — at each bidding, Mr. H. Frazer told Mr. Marvin he stood in his own light, for that he (Mr. Frazer,-) was bidding for his benefit, and that of the other creditors of hig son. This was repeated several times. Being cross-examined, Mr. Shaw testified, that he was inclined to think this was at the sale of the Black River lands, which are distinct from Clegg’S Point. He does not remember if Mr. Coggeshali was present, a* Marvin’s adviser. On being re-examined, Mr. Shaw testified, that he did not remember whether the land-was knocked off to Mr. Fra-zer ; the genera] impression was, that the land did not sell for half its value. Witness considered Mr. Frazer’s declarations as genera], and as applying to all his son’s property, and not to any parti, eular land ; and from Mr. Frazer’s -declarations, believed he was acting for the benefit of the creditors,- and that his purchasing his son’s property made it unnecessary for the creditors to bid or interfere ; don’t remember whether Clegg’s Point was knocked off to Mr. Frazer, (the answer admitted.it.)
    The complainant’s counsel produced the marriage settlement of Rev. Hugh Frazer, and Miss Porter, March, 1706. She was then under age ; her son, B. P. Frazer, was born in 1787 ; the mothest died under age ; B. P. Frazer died in 1829', leaving two children. The execution states a levy on plantation, without specifying ; date May 15th, 1824. It would be a difficult thing to decide on this point of the case. The answer of the defendant, a respectable' clergyman, is certainly at variance with the letter of 6th July, 1824, (above cited,) and with the evidence of Mr. Shaw, a respecJ table witness. Both the witnesses are entitled to' creditbut there must be a failure of recollection On one side or the other, which iá not to he wondered at, after a lapse of eleven or twelve years 5 yet the letter of Mr. Frazer seems to corroborate the recollections of Mr. Shaw. Under these circumstances, it would be a most painful duty to decide this case on that ground, and, as I think, it may be properly decided on another, I willingly avoid doing so-Mr: Frazer states,- ihat though he does not feel himself legally bound to make a resale of the lands, and especially of Clegg’s. Point, yet he was willing, and had offered, from a sense of justice to his son’s creditors, to sell the lands at their full value, if that could be obtained, and to apply the proceeds to the payment of the just debts of his son ; and that in anticipation of such sales he had actually paid just debts of his son’s, to the amount of $15,000, over and above the $8000, at which he had bid off the land. Now,' if this be correctly stated, as wé have reason to believe, then there is no ground to insist on the sale of the land ; for the defendant has' done, by anticipation, out of his own funds, all that could be required of him, if the case had been most fully proved against him ; for it is not contended that the lands and the personal property together, exceed $18,000 in value. It is, therefore, ordered and decreed, that it be referred to the commissioner to receive proofs of the amounts paid by the Rev. Hugh Frazer, on his son’s debts ; and ef the value of the seal and personal estate of the said B, P. zer, which came into the hands of Mr. Hugh Frazer, and to report thereon ; and also to report, if any, and what amount is due to the' complainant.
    HENRY.W. DESAUSSURE,
    
      Grounds of Appeal.
    1. Because his honor decided, “that the real estate of Mrs. Fra-' zer was not bound by the marriage settlement, made in her minority, she having died a minor, and consequently, the same never having been legally confirmed by her ; and that her real estate^therefore, descended on her death, according to law, one third to her husband, and two thirds to her son whereas, it is most respect* fully submitted, that the settlement was valid, and did not require-confirmation ; or, in any event, the covenant of Mrs. Frazer,-could only be avoided by herseli, or her legal representatives ; and" the settlement should be sustained in favor of the infant defendants,who were purchasers under it.
    2. Because if the settlement were void, and two thirds of the Clegg’s Point plantation vested in Benjamin P. Frazer, deceased,the allegation as to the- contract, made at the sheriff’s sale, was positively denied by the defendant’s answer, which, it is most respectfully submitted, is perfectly reconcilable with the evidence adduced at the trial, aud, therefore, no reference was necessary as to-the payments made by the defendant.
    3 Because the defendant’s answer having denied any assets of his intestate, and no proof to the contrary offered, the bill should' have been dismissed.
    4.' Because the decree was made without any evidence of a debt due to the complainant, or assets in the hands of the defendant.
    DUNKIN, Defendant's Solicitori
   Chancellor D. Johnson

delivered the opinion of the court.

The leading questions propounded in this appeal, and those alone-on which the court think it necessary to express any opinion, are,

1st. Whether a female infant is bound by marriage articles, by which her own estate is settled- to the use of the marriage ?

2d. If not, whether any other than herself, or her legal repre* aentatives, can avoid it ?

They arise out of marriage articles entered into between the Rev. Hugh Frazer and Elizabeth Clegg Porter, in 1796, the said Elizabeth then being about sixteen years of age ; whereby a plantation called Clegg’s Point, of which she was then seized, is conveyed to trustees to the use, in the event which has happened, of the intended husband for life, remainder to all and singular the children of the marriage, and to “ the lawful issue of any such children as may happen to be dead, equally and impartially to be divided bes-itween and among them,” &c. The marriage contemplated was accordingly had and solemnized, and the only issue of the marriage was a son, Benjamin Porter Frazer. Elizabeth the wife died in 1797, being then under the age of twenty-one years. Benjamin the «on died in 1829, being then upwards of .thirty-two years of age, •leaving two children, parties defendants in this suit. The Rev. Hugh Frazer, the husband, is still alive, and also a party defendant, the administrator of Benjamin the son. The complainant claims as a creditor of Benjamin the son, who died otherwise insolvent; and in support of the bill it is insisted that the marriage articles are void, Elizabeth the wife being an infant at the time of their execution ; consequently on her death, two thirds of Clegg’s Point, descended to the son Benjamin, and are assets for the payment of his debts. It may be proper also to premise that at the time of the marriage, the wife, Elizabeth, was in addition to Clegg’s Point, Seized of other real estate, and possessed of a number of slaves, all of which was by the terms of the articles secured to the joint use of the husband and wife during their joint lives, remainder to the survivor, and on the death of the survivor remainder to the children, &e. as before stated, and that nothing like fraud in obtaining the marriage articles has been charged or pretended. So that th@ questions propounded are unmixed questions of law.

The question whether a female infant is, or is not. bound by & marriage settlement, which disposes of her own real estate, is on® ,of much interest, and about which there has been great diversity of opinion amongst the most learned lawyers and judges of the Eng. lish courts. It is one of the first impression here, and as it is not indispensable to the satisfactory determination of the case before us, I propose only to offer some general views of it, more with a view to call the attention of the profession to it, than to express any set-tied opinion of my own.

In Drury vs. Drury, 2 Eden 39, the question was, whether aa infant wife, who had been jointured, was, or was not barred of dower in the lands of her husband under the statute of 27 Hen. 6th ; and on discussing that case, the court went very fully into the general question, whether a female infant was, or was not bound, by a marriage settlement disposing of her real estate ? Lord North-ington, who tried the cause, held that she was not bound either by the. statute, or by the rules of the common law, and that she might elect to take either the jointure or dower. He insists that the policy of the common law, which avoids the contracts of infants in other patters, extends also to marriage settlements of real estates by ie pneie infants. That as an incident to marriage, the law had en, flowed the wife in the lands of her husband, and conferred on the husband all the chattels of the wife, regarding each as an equivalent for the other. Thus superseding the necessity o,f any contract between the husband and wife in relation to their estates. This judgment was, however, reversed, on an appeal to the House of Lords, with the concurrence of a majority of the judges, amongst whom were Lord Hardwicke, Lord Mansfield, and Wilmqt, J, On that side of the question, it is maintained, that although infants are not generally bound by their contracts, they are bound by such as are for their benefit, as for necessaries and the like. That a female in, fant over twelve years is capable of entering into the contract of jnarriage — into the consideration of which, the settlement of her yeal estates enters very largely, and without which the marriage might never have been had, and as the marriage is indissoluble the Settlement ought to be binding. See 2d Eden SI — 72, Wilmot’s Notes 184; and in this opinion Mr. Atherly, in his Treatise on Marriage Settlements, pp. 89, 40, after a full record of the authorities, concurs, regarding the direct question as not then entirely settled. It came up again incidentally in Durnford vs. Lane, 1 Bro. C. C. 106, when Lord Thurlow expressed himself favorably towards the judgment of Lord Northingfon, in Drury vs. Drury, and in Milnor vs. Harwood, 18 Ves. 275, which was tried in 1811. Without entering into the argument, or reviewing the cases, Lord Eldon concurred in that opinion, and that seems to be regarded as decisive of the question there, 2 Kent’s Com. 199,

If the matter be regarded as definitively settled, then it becomes a .question how far we are bound by it. The act of 1712, which incorporating the body of the English common law into our jurisprudence, renders it obligatory no further than it is applicable to our own condition and circumstances; and in applying the rules we must take care that they do not violate some other fixed rule grow, ing out of our own peculiar habits and institutions it would be unsafe, therefore, implicitly to follow the English courts, without enquiring, whether under the circumstances existing here, a dif? ferent would not have obtained there.

Without adverting to the causes which must be obvious to every one, who has considered the subject, it is well ascertained that our females marry at mueb earlier ages than even in England ; indeed the instances in which females do not marry before the age of twenty one years may be accounted rare. The policy of throwing &o difficulties in the way, or rather of encouraging them, is p@Gult iarly applicable to the sparse population, and the great facilities of obtaining subsistence; and into whatever speculations the subject may lead, there can be no question, that marriage settlements, especially amongst the richer classes, enters very largely into the contract of marriage, and that any restraints upon them would oppose an obstruction.

In England, whilst personalty is scarcely regarded at all, real estates are very highly estimated, and descend in the male line, the' instances in which the wile brings with her real estate on mar-triage, are therefore rare ; and it might well be thought that it was unnecessary to break in upon a general rule, to provide for the few cases which might arise, especially as the value of the real estate of the wile might be regarded as more than an equivalent for any provision which the husband might be able to make for her. Here it is otherwise, real estates descend equally to the males and females, and the value of the slaves, which are regarded as chattels, and other personalty usually attached to a well settled plantation, may be safely estimated at double the value of the realty, and in mosteases the portion of the wife consists partly of both. There is also another diversity. In England provision is usually made for the wife out of the fortune of the husband, in consideration of the portion which the wife brings. Here the object is generally to ,secure to the wife her own fortune, constituted of lands or negroes, .or both. And if a female infant may bind herself by a settlement of her personalty, and that she may is universally conceded, jto deny her the power of also disposing of her real estate would be to frame a rule giving her the shadow, whilst the substance is taken from her. The slaves and the plantation are inseparable, one would be comparatively useless without the other, and the interest of the wife would seen\to require that she should be left to treat the matter without restraint. The watchfulness of parents, and the care of guardians and friends, would in general be a sufficient guard against rash and inconsiderate settlements on her part, and the courts of justice would always relievo against positive fraud in obtaining them.

There is another consideration. Instances of female infants settling their real estates on their marriage must have very frequently' happened, and the question, whether they are bound by it, never has been before made. They, have always been treated as valid, and the estates have passed under them. Public opinion appears to have settled down in favor of their validity, and to introduce a new order of things might disturb the repose of titles, which have been acquired under them. The matter ought, therefore, to be well weighed beiore we venture upon it.

The remaining question is one of less difficulty. The question -as to what contracts of an infant are absolutely void, or voidable only, is a very fit subject of a lecture or disputation, but I do not perceive that we should derive any advantage from treating of it so much at large here. It is already sufficiently ascertained, that that there is a class of contracts, (within which, I propose to shew that this case falls,) which are considered as voidable only, and that the election to avoid or abide by them, is a personal privilege, ojjfc which no other than the infant, or those claiming as legal representa* tives, can avail themselves.

Bingham in his Treatise on Infancy, p. 33, lays down the rule that all the acts of an infant, capable of being legally ratified, are voidable only, and that such only are absolutely void, as are incapable of being legally ratified ; and on this principle it was held iti Zouch vs. Parsons, 3 Bur. 1794, that the conveyance of an infant by lease and release, was voidable only. But Chancellor Kent, has, I think, shown very clearly that the rule is not a certain test, and after reviewing the authorities, concludes with Chief Justice Eyre, in Kean and Beycott, 2 H. Black. 51, that when the contract of an infant was obviously to the prejudice of the infant, it is void — when for his benefit, as for necessaries and the like, it is good, and when uncertain as to the benefit or prejudice of the infant, it is voidable only at his election. 2 Kent Com. 192, 3,

These rules apply obviously to executory contraéis, and I cannot well suppose that it ever yet entered into the head of any one, who considered the subject, that the executed contract of an infant, where he had done all that was necessary to invest another according to the forms of law, with the title and possession of his estate, was absolutely void. For example. An iafant makes an ad van? tageous bargain in the sale of his estate, or he gives it away, and executes formal conveyances, and the purchaser or donee enters under it; himself and his legal represen thrives are well satisfied to acquiesce in it, can it be that a stranger would be permitted to en„ ter on the purchaser with impunity, on the ground that he derived his title from an infant ? and yet this must be the effect if the •conveyance of the infant is absolutely void.

Atherly in his Treatise on Marriage Settlements, 43, has in a note referred to Perkins as authority for a rule, which appears to me to point at the principle. It is, “ that all gifts, grants, or deeds made by infants, which do not take effect by the delivery of the liana are void, but all gift's, grants, or deeds made by infants by matter in deed or writing, which do take effect by delivery of his hand are voidable by himself, his heirs and those who heir his estate.” That the infant or his legal representatives alone are competent to avoid a voidable contract, is not, I think, questioned any where. That doctrine is distinctly recognized by Lord Eldon in Milnor vs. Harwood, and in that all the authorities agree.

JDunkin, for motion.

Huwt, contra.

Filed 21st March, 1837.

In England lands pass only by livery of seisin, and it might well be questioned, whether the conveyance of an infant by deed without livery was void, or voidable only ; but here the delivery of the ífeed is substituted for the livery of seisin and invests the purchaser with the title.

Here Elizabeth Clegg Porter, then an infant, in contemplation of marriage with Hugh Frazer, conveyed her estate to trustees for certain uses. She died during her infancy, her husband surviving, and supposing the conveyance to be voidable only, she was never competent, nor did she make an election, whether to be bound by it or not. Her only issue, Benjamin, lived to the age of thirty-two,, eleven years after he attained full age, without calling the settle* ment in question, or making his election. The descent is now cast on his infant children, who must of course elect to take under the-settlement, as otherwise the estate would be assets to pay the debts of their father. The creditors of Benjamin, strangers to the blood of Elizabeth, very clearly have no right to interfere in the matter.

The complainants bill must, therefore, be dismissed,- so far as it seeks to change - the settled estate ; each party to pay their own costs.

HA VID JOHNSON.

I concur,

“WILLIAM HARPER;  