
    WEILAND et al. v. KOBICK.
    
      (Supreme Court of Illinois,
    
    
      May 19, 1884.)
    
    1. Pleading. That in ejectment under the Illinois statute, when the defendant pleads the general issue, it is not necessary for the plaintiff to prove that defendants were in possession of the premises or claimed an interest or title therein.
    
      2. Infancy—Disaffirmance—Estoppel. That where a minor had given a deed reciting that she was of age, and after becoming of age she filed a disclaimer: held, that she was not estopped by the recitals in the deed from setting up the fact of her infancy ; that the doctrine of estoppel is inapplicable to infants.
   Sheldon, C. J.

This was an action of ejectment for the recovery of a certain lot of land in an addition to Chicago. There was recovery by the plaintiff and the defendants appealed.

On the trial in the Court below, there was introduced in evidence, in defense, a deed from the plaintiff to Emily C. Cummings, in which it is recited that “Margaretha David,” the plaintiff, unmarried and of age, for $3,500 conveys and quitclaims to Emily C. Cummings the property in question, and a deed from Emily C. Cummings to Anna C. Haas, one of the defendants.

The plaintiff then introduced evidence to prove that at the date of the deed to Emily C. Cummings the plaintiff was a minor and under the age of eighteen years, and that after coming of age she filed her disaffirmance of the deed and a demand for the possession of the premises in the recorder’s office of Cook county.

It is objected that the evidence is not sufficient to justify a recovery against all the defendants, as there is no evidence to connect the three other defendants with Anna C. Haas. Defendants having pleaded the general issue only, it was not necessary, under the statute, for plaintiff to prove that defendants were in possession of the premises, or claimed an interest or title therein. R. S. 1874, Ch. 45, Sec. 22.

The only other question which appellants make upon the record is, as to the effect of plaintiff’s deed to Emily C. Cummings; whether or not plaintiff was estopped from disaffirming such deed made while she was a minor, she having stated therein that she was of age.

The authorities seem abundantly to establish that a defendant is not estopped from setting up infancy as a defense to a contract by his fraudulent representations that be was of full age. Merrium v. Cunningham, 11 Cush., 40; Studwell v. Shapter, 54 N. Y., 249; Gilson v. Spear, 38 Vt., 311; Burley v. Rus sell, 10 N. H., 184; Conrad v. Lane, 26 Minn., 389; Brown v. McCune, 5 Sandf., 228.

In the latter case the Court said: “We are not aware that any case has gone the length of holding a party estopped by anything he has said or done while he was under age, and we think it would be repugnant to the principle upon which the law protects infants from civil liabilities in general.” And furthermore, “ We are clear that the doctrine of estoppel is inapplicable to infants.”

The conclusion, we think, from the authorities must follow, that the statement in the deed of plaintiff that she was of age is not an estoppel to the disaffirmance of it.

The judgment will be affirmed.  