
    *Mustard v. Wohlford’s Heirs.
    July Term, 1859,
    Lewisburg.
    [76 Am. Dec. 209.]
    1. Infants’ Contracts — Sale of Land — Voidable.—An infant sells his tract of land, puts the purchaser in possession, and executes a bond in a penalty with condition to make the title. The contract is voidable but not void.
    2. Same — Same—Disaffirmance-—In such a case the infant on coming of age, sells the land to another person, and executes to him a bond in a penalty with condition to make the title. This is an avoiding of the first contract.
    
      3. Sale of Land — By Party Oat of Possession. — In this state a party out of possession may sell and convey his interest in land; and therefore, though the iirst purchaser from the infant has been putin possession of the land, and has received a conveyance, the infant on coming of age, may convey, and his deed will avoid the iirst deed.
    4. Infants’ Contracts — Effect of Disaffirmance. — The effect of the first contract of the infant, by his sale after coming of age, is to render the first contract void; to extinguish any interest in law or equity which the first purchaser may have acquired under it; and to entitle the vendor or the second purchaser in his name to recover possession of the land at law; and hold it free from any equity of the first purchaser.
    
      5. Same — Same.—jf an infant after coming, of age disaffirm a sale made by him whilst an infant, he becomes reinvested with the title to the property, and may demand and recover it not only from his vendee, but from any other person who may have it in possession, though he be a purchaser from his vendee.
    6. Same — Disaffirmance--Right of Purchaser. — if an infant after coming of age avoids his contract for the sale of his property, and sues to recover it, the purchaser is entitled to recover the consideration received by the infant, or so much of it as may then remain in his hands in kind.
    7. Same — Executory—-Liability of Infant for Wasted Consideration. — But a contract executory on his part, if he has during infancy wasted, sold or otherwise ceased to possess the consideration, and has none of it in his hand in kind on his arrival at agre, lie is- not liatile therefor: and may recover the property sold by him without accounting- for th e consideration received.
    8. Same -Sale oí Land — Resale to Another at flajority— Effect of Deed Obtained by First Purchaser. — The purchaser from the infant, -with knowledge of the sale made by him of theland after he came of age, obtains from him a deed for it. He can derive no benefit from the deed; but holds the legal title acquired under It in trust for the second purchaser; and may *be compelled by a court of equits- to convey said title to such second purchaser; or if he dies, to his heirs.
    
      g. Same- — Same—Same—Effect of Knowledge of First Purchase. — Though the second purchaser purchase with knowledge of the first purchase from the infant, he is not affected thereby; the same haying been disaffirmed and avoided by the second sale.
    10. Same -Same — Same—Right of First Purchaser.— Any claim which the purchaser from the infant may have on account of payments made under liis contract, or to obtain the deed, is a personal claim against his vendor, and cannot be enforced in a suit brought by the second purchaser to recover theland; he has no interest in or to theland or the purchase money due from the second purchaser.
    n. Decrees — Recitals.—The decree reciting that the suit had been revived in the name of the heirs of the plaintiff, and they being parties to the appeal as appellees, the appellant cannot object that the suit was Dot regularly revived in their names.
    12. Appellate Practice — Decrees—Amendment of — Case at Bar. — The second purchaser having sued to recover the land, and the decree having directed a convey an ce by the first purchaser from the infant, without providing for the payment of the purchase money appearing to be due from the plaintiff, the appellate court will amend the decree and affirm it.
    Alexander Nisewander, being- entitled to an undivided fifth oi a tract of land, subject to his mother’s life estate in one-third thereof, contracted, during- his infancy, to sell his said interest to John Mustard for the sum of eight hundred dollars; and on the same day, to wit, the 16th day of January 1852, executed a title bond in the penalty of one thousand six hundred dollars, conditioned to make a good deed with general warranty to the purchaser for the said interest on the 3d of November 1853, that being the day on which the vendor would attain the age of twenty-one years. Three hundred dollars of the purchase mone3r • were paid, according to the contract, in a house and lot in Mechanicsburg. No other payment was made during the infancy of the vendor, except about forty dollars, the amount of a debt assumed for him by the vendee. Ror the balance of the purchase money, the vendee executed his bond, but it does not appear when it was made payable; though it was, probably, when the *deed should be executed by the vendor, on or after his arrival at lawful age. It does not appear that any deed, or even title bond, was ever executed to Nisewander for the house and lot in Me-chanicsburg. It seems that that property was worth about three hundred dollars, and that he might have sold it for that sum if he had been of age, or could have given security to make a good title when he became of age. But not being able to do so, and being in want of nione3r, he offered to sell it for one hundred dollars; and among-others, offered to sell it to the appellant Mustard at that price. The appellant said he did not want it, but that his son Hugh would buy it. And Nisewander did sell it to Hugh Mustard and Addison Harman for about one hundred dollars; which was accordingly paid. The same property was afterwards sold by the appellant to another person for three hundred dollars, paid partly in cash and the balance in trade. Nise-wander having become dissatisfied with his sale to the appellant, determined, and often declared, that he would not, on his arrival at age, confirm the sale and make a deed according to his title bond; and these declarations were sometimes made in presence of one or two of the appellant’s sons, but not of the appellant himself. After his arrival at age, he .persisted in this determination, and so declared; and on the 8th day of November 1853 he contracted to sell his interest in the land to Samuel Wohlford for eight hundred dollars; of which one hundred dollars was paid in cash, and for the balance three bonds were executed, payable at future periods; and he executed a title bond, conditioned to make a deed before the last payment should become due. When Nisewander applied to Wohlford to make this purchase, the latter knew that the former had contracted during infancy to sell his interest to the appellant, and asked him if he did not intend to corn-ply with his said contract: and *the former replied that he did not; whereupon the latter made the purchase, and received the title bond aforesaid. A few days after this purchase the appellant endeavored to obtain from Nisewander indemnity for the money paid on their contract as aforesaid ; and, failing in that, endeavored to induce Wohlford to agree to rescind his contract with Nisewander, upon the return of the money and bonds received by the latter; but Wohlford refused to do so. Shortly thereafter, to wit, on the 18th of November 1853, the appellant induced Nise-wander to execute a deed conveying the land to him in consideration of the sum of nine hundred dollars, being one hundred dollars more than the amount of the purchase money before agreed upon between them; which sum of one hundred dollars was paid at the time of the execution of the deed.
    Very soon after the execution of the said deed, and during the same month of November 1853, Wohlford instituted this suit for the purpose of having the deed annulled as having been fraudulently obtained by the appellant with a full knowledge of the equitable rights of Wohlford, and of obtaining the legal title to the said interest, and a partition of the land and an allotment of his several portion thereof.
    The appellant in his answer admits that he obtained the deed with full notice of the prior sale and title bond to Wohlford, but says, in substance, that he had long previously purchased the same property, and received a title bond therefor from Nisewander during his infancy, of which purchase and title bond, as well as of the fact that respondent had paid a considerable part of the purchase money, the plaintiff had full notice at the time he made his purchase and obtained his title bond as aforesaid; that whether the plaintiff had such notice or not, respondent insists that having acquired the 'first equitable title, he had a right, notwithstanding his knowledge of any subsequently acquired “'equity of the plaintiff, to perfect his purchase, if he could, by obtaining a conveyance of the legal title; that although Nisewander was under age at the date of the title bond to respondent, yet it was not on that account void, but only voidable, and might be affirmed or dis-affirmed at the election of said vendor, after he arrived at lawful age; that the sale and title bond of Wohlford were not a disaf-firmance, but the deed to respondent was an affirmance of the said title bond to respondent, notwithstanding the payment of the additional sum of one hundred dollars as aforesaid, which was not intended to change the original contract, but merely to induce its affirmance; which respondent had a right to do.
    Nisewander, in his answer, admits the contracts of sale made by him with the appellant and Wohlford respectively, the former before and the latter after he became of age, and states that a considerable portion of the purchase money due under the former contract was paid, or attempted to be paid, in a house and lot for which he had no use, and owing to the advantage thus taken of him, he determined, before he became of age, and expressed the determination frequently and publicly, that he would not confirm the contract; that after he became of age he expressed the same determination to various persons, and among ! them to Wohlford, and offered to sell him the land, which Wohlford then bought; that after making this contract with Wohlford, he was, by the free use of liquor supplied by Powers, acting for Mustard, prevailed upon to make a deed for the land to Mustard, which he would not have done if he had been sober; that at the time of the execution of the deed Mustard paid him one hundred dollars more than the original contract price; and that, the sale to Wohl-ford was a fair one, made when respondent was sober, for a fair consideration, and he had no desire to defeat it.
    *The facts, as before stated, are fully proved by the evidence; which also tends to prove that the deed from Nise-wander to Mustard was obtained by undue and improper means practiced by the agent of the latter: but that fact is immaterial, in the view taken of the case by the court.
    On the 11th of April 1857 a decree was rendered in the cause, reciting that Wohl-ford having died pending the suit, it had been revived in the name of his heirs, declaring the deed from Nisewander to Mustard to be fraudulent and void, directing the same to be set aside and canceled, and that Mustard should convey to the said heirs all the title vested in him by said deed, and appointing commissioners to make partition as prayed for in the bill.
    Prom that decree Mustard applied to this court for an appeal; which was allowed.
    N. Harrison and Grattan, for the appellant, insisted:
    1st. That Mustard having been in possession of the land and having the legal tille, a court of equity will not compel him to surrender the possession and title, to a man who had knowledge of the fact of his purchase and possession, and his having paid a part of the purchase money, without requiring him to return to the defendant what he had paid. Payne v. Dudley, 1 Wash. 1%; Lipscomb’s adm’r v. Littlepage’s adm’r, 1 Hen. & Munf. 454; 2 Sugd. Vend. 9 edi. p. 260, \ 4; Pagg’s Case, 1 Veril. R. 52. And even an infant coming into a court of equity to avoid a contract, must return what he has received. Zouch v. Parsons, 3 Burr. R. 1794; Badger v. Phinney, 15 Mass. ft. 359; 2 Kent’s Com. 240, marg. ; Smith v. Ejvans, "5 Humph. R. 70; Roof v. Stafford, 7 Cow. R. 184; Roberts v. Wiggin, 1 N. Hamp. R. 73; Weeks v. Leighton, 5 Id. 348; Northwest Railway Co. v. McMichael, 5 T$xch. R. 123; Addis. Cont. 87; Amer. Lead. Cas. 260; Hillyer v. Bennett, *3 Kd-wards Ch. R. 222; Brawner v. Franklin, 4 Gill R. 463; Weed v. Beebe, 21 Verm. R. 495, 500.
    2d. That it is not a case for specific performance. To entitle Wohlford to sustain his bill, he must show that his vendor was in a condition to enforce a rescission of his contract with Mustard, and that he is entitled to ask the specific execution of his contract with Nisewander. That Nisewander could not enforce a rescission, first, because he could not return the consideration he had received; and second, because, after coming- of age, he had executed the contract by conveying the land to Mustard. And the plaintiff cannot sustain his bill, because he could have no better equity than Nisewan-der. And further, he knew when he purchased, that Mustard was in possession under a contract with Nisewander, and had paid part of the purchase money, which he would lose if his contract was avoided. At most, therefore, it was a case for compensation. Armstead v. Hundley, 7 Gratt. 52; Parrell v. McKinley, 9 Gratt. 1.
    3d. .That although it was true that the contract was voidable by Nisewander, and only voidable, 1 Amer. Head. Cas. 244, 248; Abell v. Warren, 4 Verm. R. 149; Oliver v. Houdlet, 13 Mass. R. 237; Bool and wife v. Mix, 17 Wend. 119, 131; yet Mustard having been put into possession of the land, the sale of the land by Nisewander to Wohl-ford whilst Mustard’s possession continued did not avoid the previous contract with Mustard. Jackson v. Burchin, 14 John. R'. 124; Jackson v. Carpenter, 11 Id. 539; Tucker v. Moreland, 10 Peters’ R. 58, 79; 1 Amer. Head. Cas. 257.
    Staples and Wade, for the appellees, insisted ;
    1st..-That admitting the contract with Mustard to be only voidable and not void, the sale and execution of his title bond by ■ • Nisewander to Wohlford, after corning *of age, was a disaffirmance of his contract with Mustard. Tucker v. Moreland, 10 Peters’ R. 58; 1 Parsons’ Cont. 273; Jackson v. Burchin, 14 John. R. 124; Cresihger v. Bessee of Welch, 15 Ohio R. 156; 1 Amer. Head. Cas. 114, note. And whilst it was true that in the states where one out of possession of land cannot sell, the infant would be required to enter upon the land sold during his infancy, in order to avoid the sale; yet in this state, and under our present statute, no such entry is necessary to enable an infant to avoid his contract made during his infancy. 1 Amer. Head. Cas. 114 ; 1 Parsons’ Cont. 273, 274. And if the sale to Wohlford was a disaffirmance of his contract with Mustard, no subsequent act of his could affirm that contract. 1 Amer. Head. Cas. 111.
    2d. That the proposition was well established, that if during his infancy, an infant wasted or otherwise ceased to possess the property acquired by the contract, he was not thereby deprived of his right of election, and might nevertheless, on coming of age, avoid the contract, and take the property given in exchange. And that in this case, Mustard was in no situation to insist upon a different rule, since by his own act he has deprived the infant of the power to return the property acquired by the contract.
    3d. That if it was true, as they contended, that the contract with Mustard was avoided by the contract with Wohlford, then Mustard had no equity either as against Nise-wander or Wohlford; and having obtained the legal title with a knowledge of Wohl-ford’s equity, he held i't as trustee for Wohl-ford, and a court of equity would compel him to convey it to him. That not having an equity to insist upon the return of the property which he had transferred to Nise-wander as against him, he could have none on that ground against Wohlford.
    
      
      Infants’ Contracts — Sale oí Land — Voidable.—For the proposition that an infant’s contract for the sale of his land is voidable and not void, and may be dis-affirmed or ratified by him after he becomes of age. the principal case is cited and followed in the following cases: Gillespie v. Bailey, 12 W. Va. 92, 93; Wilson v. Branch, 77 Va. 71; Birch v. Linton, 78 Va. 590; Bedinger v. Wharton, 27 Gratt. 871, and note: McClanahan v. Roanoke Iron Co., 95 Va. 558, 28 S. E. Rep. 955, but in this case disaffirmance was not allowed because of the laches on the part of those entitled to disaffirm. In Dellinger v. Foltz, 93 Va. 734, 25 S. E. Rep. 998, it is said; "If it be true that one who deals with an infant in his own proper person does so at his peril, a fortiori is it true when he deals with one who represents himself as agent of the infant, it being well settled that an infant cannot empower an agent or attorney to act for him, and that such an appointment would be void. Nor can he affirm what one has assumed to do for him, for he cannot ratify what he could not authorize. 1 Minor’s Inst. 516; Mustard v. Wohlford's Heirs. 15 Gratt. 329; Thomas v. Roberts, 16 M. & W. 778; Dexter v. Hall, 15 Wall. 9; Fonda v. Vanhorn, 15 Wendell 631; Armitage v. Widoe, 36 Mich. 124; Trueblood v. Trueblood, 8 Ind. 195.”
      In Kyger v. Sipe, 89 Va. 509, 16 S. E. Rep. 627, the rule laid down in the principal case as to the righ t of an infant to disaffirm his contract after becoming of age is approved; but it is held in that case that where the infant is bound jointly with an adult, who is surety for the infant, the plea of infancy which is purely a personal plea, will not release the surety, but the contract will subsist against him in full force.
    
    
      
       Same — Same-- Disaffirmance. — In Sanger v. Hib-bard, 104 Fed. Rep. 457, the court said: " 'The question.’ says the supreme court, 'is whether the acts and declarations of an infant during infancy can estop him from asserting the invalidity of his deed after he has attained his majority. In regard to this there can be no doubt, founded either upon reason or authority. Without spending time to look at the reason, the authorities are all one way. An estoppel in pais is not applicable to infants, and a fraudulent representation of capacity cannot, be an equivalent for actual capacity. Brown v. McCune, 5 Sandf. 224 ; Keen v. Coleman. 39 Pa. St. 299. A conveyance by an infant is an assertion of his right to convey. A contemporaneous declaration of his right or of his age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented or contracted. But he can no more do that effectively than he can make the contract alleged to be confirmed.’ Sims v. Everhardt, 102 U. S. 300, 313, 26 L. Ed. 87. The rules of law which we have stated, and which ate the only ones applicable to the facts of this case, and decisive of it, are supported by all the authorities. Corey v. Burton 32 Mich. 30: Whart. Cout. § 56; Badger v. Phinney, 15 Mass. 359; Chandler v. Simmons, 97 Mass. 508 ; Carr v. Clough, 26 N. H. 280; Railway Co. v. Higgins, 44 Ark. 296; Ruchizky v. De Haven, 97 Pa. St. 202 ; Mustard v. Wohlford's Heirs. 15 Gratt. 329; Mortgage Co. v. Dykes, 111 Ala. 178, 18 South. 292 ; Brantley v. Wolf, 60 Miss. 420; Gibson v. Soper, 6 Gray 279 ; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906. The judgment of the United States court of appeals for the Indian Territory, and the judgment of the United States court in the Indian Territory, Northern district (53 S. W. 330), are reversed, and the causéis remanded to the latter court, with instructions to grant a new trial, and to proceed therein not inconsistently with this opinion.”
      In Central Land Co. v. Laidley, 32 W. Va. 139, 142, 9 S. E. Rep. 61, the deed of a married woman and her husband, was void as to the married woman, because of a defective certificate of her examination and acknowledgment, and after the death of her husband she conveyed the land to another with notice of the former deed; and the court after givingthe facts in the principal case, said: “That case logically by analogy rules» this case. An infant's conveyance is not void, but voidable, whereas a married woman's deed, without proper certificate, is void at the start, if a mail may purchase the infant’s land after he becomes of age, with notice of a prior sale to another during infancy, vesting the first purchaser with title until avoided, and the second purchaser takes a better title than the first, and call on equity to enforce his right by taking from the first purchaser his legal title, acquired after the infant obtained his majority pursuant to his sale in infancy, why cannot much more a second purchaser from a married woman acquire a better title than one who took from her a deed not voidable, but void at the instant of its execution?”
      See, in accord, Cuffey v. Hukill, 34 W. Va. 58. 11 S. E. Rep. 756, citing the principal case.
    
    
      
      Same — Same-Rights of Parties. — In MacGreal v. Taylor, 17 Sup. Ct. Rep. 965, it is said: “So in Chandler v. Simmons, 97 Mass. 508, 514, the court said: "Another ground relied on by the defendant is that the deed (by the infant) cannot be avoided without a return of the consideration. We do not understand that such a condition is ever attached to the right of a minor to avoid his deed. If it were so, the privilege would fail to protect him when most needed. It is to guard him against the improvidence which is incident to his immaturity that this right is maintained. Gibson v. Soper, 6 Gray 279-282; Boodey v. McKenny. 23 Me. 517. If the minor, when avoiding his contract, have in his hands any of its fruits specifically, the act of avoiding the contract by which he acquired such property will devest him of all right to retain the same, and the other party ma3 reclaim it. He cannot avoid in pare only, out must make the contract wholly void if at ail, so that it will no longer protect him in the retention of the consideration. Badger v. Phinney, 15 Mass: 359: Bigelow v. Kinney, 3 Vt. 353. Or, if he retains the use or dispose of such property after becoming of age, it may be held as an affirmance of the contract by which he acquired it, and thus deprive him of the right to avoid. Boyden v. Boyden, 9 Metc. (Mass.) 519; Robbins v. Eaton, 10 N. H. 561. But if the consideration has passed from his hands, either wasted or expended, during his minority, he is not thereby to be deprived of his right or capacity to avoid his deed, any more than he is to avoid his executory contracts. And the adult who deals with him must seek the return of the consi deration paid or delivered to the minor in the same modes and with the same chances of loss in the one case as in the other. Dana v. Stearns, 3 Cush. 372-376. Itis not necessary, in order to give effect to the disaffirmance of the deed or contract of a minor, that the other party should be placed in statu quo. Tucker v. Moreland, 10 Pet 65-74; Shaw v. Boyd, 5 Serg. & R. 309.’ See, also, 1 Am. Lead. Cas. (5th Ed.) 224, 232, 249,259; Mustard v. Wohlford's Heirs, 15 Gratt. 329-340; Cressinger v. Welch’s Lessee, 15 Ohio St. 156; Eureka Co. v. Edwards, 71 Ala. 248, 256; Corey v. Burton, 32 Mich. 30; Price v. Furman, 27 Vt. 268, 271; Robinson v. Weeks, 56 Me. 102, 107; Carpenter v. Carpenter, 45 Ind. 142, 146; Harvey v. Briggs, 68 Miss. 60, 66, 8 So. Rep. 274; Railway v. Higgins, 44 Ark. 293, 297; Reynolds v. McCurry, 100 Ill. 356, 359; Tyler, Inf. § 37. and authorities cited.”
      See also, Bedinger v. Wharton, 27 Gratt. 871, and note; Gillespie v. Bailey, 12 W. Va. 92, 93 ; Abernathy v. Phillips, 82 Va. 773. See generally, monographic note on “Infants.”
    
    
      
      Bec«es — Recitals—Effect.—In Arnold v. Arnold, 11 W. Va. 457, it is said: “It does appear in the evidence, that said Reese and wife were in the west at the date of the said deeds. The circuit court having in its decree ascertained and recited that the 'process was duly executed as to the defendants,' of which said Reese, and his wife were a part, it seems to me that under the authorities above cited, and the case of Mustard v. Wohlford’s Heirs, 15 Gratt. 329, and the principles therein established, and the circumstances and facts of this case, above stated by me, that the appellants cannot object that said Reese and his wife were not before the circuit court in said cause, at or before the rendition of said decree ; although it nowhere appears in the transcript of the record before us, that they were served with process in the cause, except in and by the said recital in the said decree of the court which is appealed from. This objection and assignment of error is therefore overruled in this cause.”
      See also, Livesay v. Feamster, 21 W. Va. 101, citing the principal case. See note to principal case reported in 76 Am. Dec. 209.
    
   *MONCURE, J.,

delivered the opinion of the court:

The court is of opinion, that the contract of the 16th of January 1852, between Nisewander and the appellant, though made when the former was under age, and when that fact was known to the appellant, was not a void contract, but only voidable, and subject to be affirmed or disaffirmed by the former, after his arrival at age. “The tendency of the modern decisions (says Chancellor Kent) is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election, when they become of age, either to affirm or disavow them.” 2 Kent Com. 235. The authorities on this subject are fully collected in the valuable notes of Hare & Wallace, appended to the case of Tucker, &c. v. Moreland, in 1 American Leading Cases, edition of 1857, p. 224-267. And from the numerous decisions which have been had in this country, the annotators deduce the following definite rule, as one that is subject to no exceptions. “The only contract binding on an infant, is the implied contract for necessaries : the only act which he is under a legal incapacity to perform, is the appointment of an attorney; all other acts and contracts, executed or executory, are voidable or confirmable by him at his election.” Id. 244. It is not material that the title bond in this case is in a penal sum; though it has been said that a bond of an infant with a penalty is void. Coke Hit. 172 a; recognized as being still the law by Bayly, J., in 3 Maulé & Sel. 482. The penalty of the bond is a mere matter of form, the substance of the contract being the condition, on which may be maintained an action of covenant at law or a suit for specific performance in equity. See also 3 Rob. Pr. (new) 221-228.

The court is further of opinion, that the said contract was disaffirmed by the contract of the 8th of ^November 1853, between Nisewander and Wohlford, made after the former arrived at age. There is no evidence, nor even pretence, of any affirmance of the former contract by Nise-wander after he arrived at age and before he entered into the latter, which was but eight days after his arrival at age. On the contrary, he persisted, during that period, in declaring that he would not confirm the former contract. Then, the question is, Did not the latter amount to a disaffirmance of the former? A voidable act of an infant may be avoided by different means, according to the nature of the act; but, without undertaking to enumerate them, it is sufficient for the purposes of this case to say, that such an act may certainly be avoided by him, after he becomes of age, by an act of the same nature and dignity. Thus a feoffment may be avoided by a feoffment; a deed of bargain and sale, by a deed of bargain and sale; a title bond, by a title bond, &c. ; the two acts in these cases being of the same nature and dignity. It is not necessary, in order to produce that effect, that the latter act should expressly disaffirm the former. It is enough that the two acts are inconsistent with each other; in which case the former is disaffirmed by plain and necessary implication. The case of Frost v. Wolveston, 1 Strange’s R. 94, seems to have proceeded on this principle. There, an infant covenanted to levy a fine by a certain time to certain uses; and before he came of age he levied the fine, and by another deed, made at full age, he declared it to be to other uses: the court held that the last deed should be the one to lead the uses. So also did the cases of Jackson v. Carpenter, 11 John. R. 539; Jackson v. Burchin, 14 Id. 124; and Tucker v. Moreland, 10 Peters’ R. 58.

In these cases, deeds of bargain and sale were avoided by deeds of the same nature to other bargainees. In the last of them, Judge Story said the *first two “are directly in point, and proceed upon principles which are in perfect coincidence with the common law, and are entirely satisfactory.” In these cases, the first grantee was not in actual possession when the second deed was executed, but the land was either vacant, or the grantor remained in possession. If there be an adverse possession, then, it is said, in those states where one out of possession cannot sell, there should be an entry by the grantor in order to avoid the first deed by another. 1 Am. Read. Cas. 257, and the cases cited. But no entry is necessary in those states in which one out of possession of real estate can sell his interest therein. 1 Parsons on Cent. 273. That is the case in this state, under the Code, ch. 116, § 4, 5, p. 500; 'which provides, “that all real estate shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery;” and that “any interest in or claim to real estate may be disposed of by deed or will.” Carrington v. Goddin, 13 Gratt. 537. Butin this case, though the first vendee appears to have been in possession when the second title bond was executed, such possession was not adverse to the vendor, but in subordination to the title which still remained in him, and which would have been conveyed by him independently of the statute, and without any actual entry. In any view of the case, therefore, the contract with Wohlford was a disaffirmance of the contract with the appellant.

The court is further of opinion, that the effect of such disaffirmance, was to render the first mentioned contract void; to extinguish any interest in law or equity the appellant may have acquired under it; and to entitle Nisewauder, or his vendee Wohlford in his name, to recover possession of the land in an action at law, and hold it free from anj’ equity of the appellant. When a voidable contract of am infant is dis-affirmed *by him, it is made void ab initio by relation, and the parties revert to the same situation as if the contract had not been made. 1 Am. Lead. Cas. 259; Boyden v. Buyden, &c., 9 Metc. R. 519. 521. If the contract was one of sale by the infant, he becomes reinvested with his title to the property, and may demand and recover it, not only of the vendee, but oí any other person who may have it in possession. The right of an infant to avoid his contract is an absolute and paramount rig'ht, superior to all equities of other persons, and may therefore be exercised against purchasers from the vendee. 1 Am. Lead. Cas. 258; citing Myers, &c. v. Sanders’ heirs, 7 Dana’s R. 506, 521, and Hill v. Anderson, 5 Smedes & Marsh. R. 216, 224. He vfho deals with an infant deals at his peril, and subject to this right of the infant to disaffirm and avoid the contract. This is the case, even though he deal in ignorance of the infancy, and on the fraudulent representation of the infant that he is of full age. Van Winckle v. Ketcham, 3 Caines’ Cas. 323; Conroe v. Birdsaill, 1 John. Cas. 127; and other cases cited in 1 Am. Lead. Cas. 249. A fortiori, it is the case where, as here, the dealing is with full knowledge on the part of the adult of the infancy of the other contracting party. While the effect of avoiding the contract of sale by an infant is, on the one hand, to entitle him to demand and recover the property sold, so it is, on the other hand, to entitle the other contracting party to demand and recover the consideration received by the infant, or so much of it as may then remain in his hands in kind. Indeed, if the infant, after arriving at age, and before any act of disaffirmance by him, alien any part of the consideration, or exercise any unequivocal act of ownership over it, or retain it in his hands in kind for an unreasonable length of time, he may thereby affirm the contract and render it absolutely binding. Id. 255. But if he has, during infancy, wasted, sold *or otherwise ceased to possess the consideration, and has none of it in his hands in kind on his arrival at age, he is not liable therefor, and may recover possession of the property sold by him (at least if the contract of sale be executory merely on his part) without accounting for the consideration received. “The true rule,” as stated in Story on Cont. $ 42, “seems to be, that when articles are furnished to the infant which do not come within the definition of necessaries, and which are consumed or parted with; or when money is lent which is expended by the infant; the other party has no remedy to recover an equivalent for the goods or money; the specific consideration given by him being parted with, or not being capable of return. But when the specific consideration, whatever it be, exists, and remains in the hands of the infant at the time of the disaffirmance of the contract, and is capable of return, the infant is bound to give it up, and he is treated as a trustee of the other party, if the contract be made originally in good faith. The ground of such a distinction is, that in the first case the goods or money cannot be returned; and to make the infant liable therefor in damages, merely because they had been used -by him, would be to deprive him of his privilege of affirming or avoiding his contract.” See also Boody v. McKenney, 23 Maine R. 517.

In the case of an executed sale by an infant, it has been held that if he disaffirm the sale and seek to recover back the article sold, he must restore the purchase money or other consideration; Smith v. Evans, 5 Humph. R. 70; Badger v. Phinney, 15 Mass. R. 359, 363; and if he go into chancery to set aside his conveyance, he must offer in his bill to restore the purchase money; Hillyer v. Bennett, 3 Edw. Ch. R. 222. Without expressing any opinion upon this question, it is sufficient for the purposes of this case to say, that no case of an executory contract of sale by an in- . fant ’“'has been found, in which the infant, disaffirming the contract after his arrival at age, has been held accountable for the consideration received and spent by him during his infancy; but all the authorities on the subject seem to be the other way. If the infant in any such case has delivered possession of land contracted to be sold by him, he has an unconditional right to recover it back in an action at law; and a court of equity* will not restrain him from doing so, nor impose terms upon the exercise of his right. Such was the decision of the court in Brawner & wife v. Franklin, &c., 4 Gill’s R. 463. Dorsey, J., in delivering the opinion of the court, said, ‘‘Establish the doctrine now contended for, and what is the result? Why, that the whole policy of the law as to infantile incompetency to sell, waste and dispose of their property and estates, is frustrated.” ‘‘An infant may sell his patrimonial estate, prodigally waste the purchase money in extravagance, gambling and dissipation ; and if, when arrived at years of maturity and discretion, he disaffirm the contract, and sue at law for the recovery of his property, a court of equity will, by injunction, arrest the arm of the law, and say to him, Before you shall further assert your claim to your estate, you must repay to the purchaser ail the money you have received from him.” To such a doctrine the court refused to subscribe, and, we think, rightly so.

The court is further of opinion, that the appellant having no equity in regard to the land when he obtained the deed of the 18th of November 1853, and having obtained it with full knowledge of the equity of Wohl-ford, can derive no benefit from the said deed, but holds the legal title acquired under it in trust for the heirs of Wohlford, and may be compelled by a court of equity to convey said title to them. A purchaser for valuable consideration without notice of a prior equity, and having the legal estate, is entitled to apriority in equity as well as at law, according to the maxim, that where equities are equal, the law shall prevail. He is a great ■ favorite of a court of equity, and has been protected to such an extent as to be allowed to take advantage of a deed which he stole out of a window by means of a ladder, and of a deed obtained by a third person without consideration and by fraud. Plagg’s Case, cited in 1 Vern. R. 52; Harcourt v. Knowel, cited in 2 Vern. R. 159; and Culpeper’s Case, cited in 2 Freem. R. 124. “These, however (it has been well said), were extreme cases, showing indeed how partial equity is to a purchaser, but carrying the doctrine of protection further than it would be at the present day.” 2 White & Tudor’s Eq. Cas. 6, notes to Basset v. Notworthy; 2 Sugd. Vend. 1020. And it has been held that a purchaser “shall not protect himself by taking a conveyance from a trustee after he had notice of the trust; for by taking a conveyance with notice of the trust, he himself becomes the trustee, and must not, to get a plank to save himself, be guilty of a breach of trust.” Saunders v. Dehew, 2 Vern. R. 271. If, therefore, the appellant could be regarded as a bona fide purchaser when he obtained the deed from Nisewander, he could derive no protection from that deed, which was obtained from a mere trustee of the legal title for Wohlford, and with full knowledge on the part of the appellant of the existence of the trust. Indeed, if he had then been a bona fide purchaser, he would not have needed the deed for his protection against Wohlford, who, in that case, would have been a purchaser with notice of his prior equity. But the appellant cannot be regarded as a purchaser at that time. He had received no conveyance, and paid only a part of the purchase money. His purchase was never more than voidable, and had been avoided; and he ceased to have any equity, in regard to the land; but

Nisewander was left free to dispose of it as *if he never had sold it to the appellant. So that Wohlford’s purchase, though made with notice of the prior sale to the appellant, was entirely unaffected thereby', the same having been disaffirmed and avoided. And the appellant, having obtained the deed with full notice that the person from whom he obtained it was a mere trustee of the legal title for Wohlford, became himself a mere trustee of that title, and bound therefore to convey it to Wohl-ford’s heirs.

The court is further of opinion, that any claim which the appellant may' have on account of payments made under the original contract with him, or as a consideration for the execution of the said deed, is a personal claim against Nisewander, and cannot be enforced in this suit. It has been already shown that the appellant has no interest in or claim to the land itself. Nor has he any in or to the purchase money, if any, due by Wohlford. If he has, he must have derived it from the deed. But that is a conveyance of the land, and not an assignment of the purchase money. It is adversary to the sale to Wohlford, and not in subordination to it. A claim founded thereon is in conflict with the specific execution of Wohlford’s purchase, to which he is entitled, and which is the purpose of thus suit. Such claim, there fore, cannot be enforced in this suit.

The court is further of opinion, that it sufficiently appears from the recital contained in the decree appealed from, that the cause had been duly revived in the name of the heirs of Wohlford; Craig v. Sebrell, 9 Gratt. 131; but at all events, the appellant has no right to complain of any irregularity in that respect, the said decree being in the name and in favor of said heirs, and they being parties to and defending this appeal.

The court is therefore of opinion, that there is no error in the said decree to the prejudice of the appellant. *But the court is further of opinion, that as it does not appear that the whole purchase money due by Wohlford had been actually paid when the said decree was rendered, though it had then become payable ; and as the said land was subject to a lien for so much of the said purchase money as may then have remained unpaid; the said decree should have been without prejudice to such lien, and to any proceedings for the enforcement thereof which the said Nfisewander or his assigns might be advised to institute ; and that the said decree should be amended in that respect, and as amended affirmed.

Decree amended and affirmed.  