
    [Lancaster,
    May 16, 1825.]
    STOOLFOOS and another against JENKINS and Wife.
    IN ERROR.
    
      Query, Whether there may not be cases of such g-ross and palpable fraud committed by an infant, as would render valid a release of his right to land.
    But evidence that an infant female executed such release, in collusion with her guardian, having first chosen him guardian for the purpose of cheating the re-leasees, and then deceived them by persuading them that their title would be confirmed by the release, and thus prevailed on them to pay her three hundred pounds, as her share of the land, does not constitute such a case.
    Nor, in a suit for land by such infant, which she claims by descent from her mother, and which she has thus released, is the will of her father evidence, showing lands devised to her by him: it is not a case where the party will be put to an election. '
    This was a writ of error to the Court of Common Picas of Lancaster county, in an ejectment brought by George Jenkins and Catharine his wife, defendants in error $nd plaintiffs below, against John Stoolfoos, Peter Eckert, Abraham Roger, and John Roger, defendants below and plaintiffs in error, in which a verdict was had in the court below in favour of the plaintiffs there, and judgment was rendered thereon.
    
      George Jenkins and Catherine his wife gave evidence of title in the wife, as one of the children and heirs of Catherine Hamilton, deceased, who was the wife of James Hamilton, deceased, and daughter of Patrick Carrigan, deceased. The defendants then offered evidence in substance as follows, having given notice, according to a rule of court, that they intended to offer that evidence. On the 27th of March, 1787, the lands of Patrick Car-rigan, thus deceased, were valued and appraised under an order of the Orphans’ Court, at the sum of two. thousand, three hundred and forty pounds, and ten shillings, and assigned and confirmed by the said court to the said John Hamilton in fee, on his paying to the heirs of the said Patrick Carrigan their proportion of the said sum of two thousand three hundred and forty pounds and ten shillings. On the 17lh of May, 1791, James Hamilton entered into articles of agreement with Peter Eckert, Christian Meyer, and Abraham Roger, for the sale of three hundred and two acres of land, (part of the estate of Patrick Carrigan, which had been assigned and confirmed to him by the Orphans’ Court.) It was stipulated that the bonds of the purchasers for twelve hundred pounds, part of the purchase money, should be deposited in the hands of Adam Woods, until the children of Hamilton, then infants, should arrive at full age, and execute releases to the purchasers. There was a covenant also, that Hamilton should execute a deed to the purchasers conveying a good title, free from all in-cumbrances. On the 10th of June, 1791, Hamilton made a deed to the purchasers, by which, in consideration of two thousand eight hundred pounds, he conveyed ninety-nine acres to Eckert, seventy-five acres and seventeen perches to Meyer, and one hundred and nine perches to Roger, with a covenant of, special -warranty, and for further assurance. On the 15th ofwdpril, 1800, Catherine, (the wife of George Jenkins and one of the plaintiffs, daughter of the said James Hamilton, and his deceased wife,) being about the age of seventeen years, chose her father, James Hamilton, as her guardian, and he was accordingly appointed guardian by the Orphans’ Court. On the 26th of May, 1800, James Hamilton executed a release to the persons who had purchased under him, of all his right, title, and interest as guardian of his daughter Catherine, and also of all the estate, right, and title of his said daughter. This release was sealed and delivered by the daughter Catherine, although she was not mentioned as a party in the body of .the instrument. On the 15th of January, 1799, James Hamilton, jr., son of the before-mentioned James Hamilton, released to the purchasers from his father, in consideration of their paying him six hundred pounds, part«of the purchase money, which was considered as the value of his share of his mother’s estate. The defendant offered to give evidence to prove, that Catherine Jenkins, one of the plaintiffs, being between seventeen and eighteen years of age, in collusion with her father, James Hamilton, defrauded the purchasers, by repi’esenting to them that they would have a good title by the release executed by her father and herself, and by demanding and receiving from them three hundred pounds, part of the purchase money, as her share of her mother’s estate; in consequence of which, and other misrepresentations of the said Catherine and her father, the defendants were induced to consent, that their bonds, to the amount of twelve hundred pounds, deposited with Jidam Woods, should be given up, and delivered to the said James Hamilton. The defendants offered evidence also, of the will of James Hamilton, who died in the year 1815, by which he devised to his daughter Catherine, property alleged by the defendants to be thrice the value of her share of her mother’s land. This evidence was offered with a view of supporting an equitable defence against the present action. It was opposed by the plaintiffs, on the ground of its not making a case on which the action eould be resisted; and the court, being of that opinion, rejected the evidence. The defendants excepted to this opinion, 'and on that exception the case was brought before this court.
    
      Hopkins, for the plaintiffs in error.
    1. Our defence is altogether of an equitable nature. We allege a fraudulent combination between Catharine Jenkins and her father, to cheat the defendants by getting possession of part of the purchase money. The articles of agreement and deed of release, were evidence as deeds connected with the defendants’ title, and they were also evidence as part of the equitable defence of the de.-fendants. Although Catherine was under age when 'she executed the release, yet her deed was not void, but only voidable, and therefore it was evidence. 3 Burr. 1804. Lilt. sect. 859. Perk, sect. 12. It was evidence, as a component part of the fraud committed by the infant. Sugden, 479, 480. 2 Johns. 58. 7 Serg. & Rawle, 467. 9 Mod. 35. In equity, the infant is held bound by his acts, if accompanied with fraud. 9 Vin. 415. 2 Eq. Jib. 4S9. Here the purchasers had the security in their own hands, and were induced to give it up on the representations of the infant and her guardian. Suppose there was a mistake as to the title all round, the plaintiff ought not to recover without refunding the money she received.
    2. Another error was, in rejecting the evidence of the will of James Hamilton, by which he devised to Catherine, the plaintiff, property of three times the value of her estate in this land. If she recovers, the purchasers will resort to her father’s estate for redress. Her acceptance of this devise extinguishes her right to this land. It is true she is a feme covert, but her husband might elect, and having elected he cannot support this suit. One who will take a benefit by a will, must suffer the will to be performed throughout. 2 Hern.. 555. One cannot take under a will, and prosecute a claim inconsistent with the will. Row. on Dev. 443. Covenant to leave wife six hundred pounds — the husband dies intestate, by which she is entitled to six hundred and twenty pounds: this shall be a satisfaction of the covenant. 1 P. Wms. 323. A. seized of land in tail, and other land in fee, devises the fee to his heir, and the tail to another child; the heir shall not take both. 2 Hern. 232.
    
      Champneys and Rogers, contra.
    We gave in evidence the title of the plaintiffs to upwards of forty acres of her mother’s land. This she must recover, unless she has conveyed her estate by some mode known to the law. The evidence offered by the defendants was rejected, because, if given, it availed nothing. The defendants offered a deed of release from Hamilton, as guardian, executed also by Catherine his daughter. This was not evidence, because, as for Hamilton, his release could have no effect against his daughter; and as for her, she was no party, although she put her hand and seal to it. It was not her deed. Nothing is mentioned in the deed as being done by her. A lease of an infant’s land by her father, as natural guardian, Is void. The signing and sealing of the release by the infant is proof of ignorance, but of nothing like fraud. If the infant thought and said that the title was secured to the purchasers by this release, there is no fraud in that. The defendants have no right to complain, as they have Hamilton’s covenant to secure them. If there has been a fraudulent combination, it has been practised against the infant, and not by her. What could she know of the law at the age of seventeen ? How easy would it have been for the guar» dian to prevail on his ward to execute this deed. But it is denied that in Pennsylvania an infant’s title can be divested by his fraud. If he has been guilty of fraud, let an action on the case be brought against him to recover damages. Suppose an infant to remain silent while he sees' his guardian sell his land as his own, this shall not divest his title. What age will the court fix on for the binding of minors by fraud. Besides, in the offers of the defendants to prove fraud, they should have specified the particular acts of fraud. They cited 3 Pac. Jib. 593. 1 Johns. Cas. 127.
    
      2. It is objected, that the plaintiffs have received property to a greater amount by the will of James Hamilton. But there is no inconsistency between our claim in this suit and under the will. It cannot appear to this court, that a recovery in this action will defeat the will. What right have the defendants to put us to an election? If we recover here, let them bring their suit against James Hamilton’s executors on the articles of agreement. The heirs of James Hamilton are the only persons who can put the plaintiffs to an election. If it were a case of election, the plaintiffs have elected by this suit to take their land. A husband cannot make an election which will deprive his wife of the land.
    
      Hopkins, in reply.
    Our defence is, that the father and child combined in an imposition on the defendants, by which the defendants were induced to part with their security, and pay the money which they might have retained. The daughter began the business by petitioning the court that her father should be appointed guardian of her estate. She represented to the defendants, that their title was complete by the release of her father, executed also by herself, and' she received the money from the defendants. We do not say that this operated as a deed of release binding the infant; but she showed it to the defendants, aiid made them believe it secured their title. The court had no right to usurp the powers of the jury, and decide what wras fraudulent; and the ground of our exception is, the not suffering the evidence to go to the jury. Infants have no privilege to cheat. 9 Pin. 415. 2 Eg. Jib. 488. “ Infancy,” says Lord
    Mansfield, “shall never be turned into an offensive weapon of fraud or injustice.” 3 Burr. 1804. We offered to prove that Catherine got the money from the defendants.
    2. We offered to give James Hamilton’s will in evidence, and to show that the plaintiff, Catherine, received from that will a much greater amount of property than she now claims. If George Jenkins succeeds in this suit, he will destroy the estate of James Hamilton, and throw every thing into confusion. The action of ejectment in Pennsylvania, is conducted on principles of equity. Now, George Jenkins has no equity in claiming this property, after receiving more than full compensation for it from the estate of James Hamilton, He entered on the land devised to his wife by 
      James Hamilton’s will, and held it for three years before commencing this action.
   The opinion of the court was delivered by

TiighmaN, C. J.

The title of Catherine Jenkins, as one of the heirs of her mother, is not denied. Neither is it denied, that in general, no act, deed, or conveyance, executed by an infant, can pass from him his real estate. But it is contended, that although the law allows the plea of. infancy, as a good defence, it will not permit the infant to convert it into an offensive weapon, for the purpose of defrauding others. It is not necessary to decide, whether there may not be cases of such gross and palpable fraud, committed by an infant arrived at an age of discretion, as would render it proper to punish him by the loss of his land. The question is, whether such a case was disclosed by the evidence offered by the defendants.

Infants would be deprived of almost all protection, if it should be established as a maxim that their contracts should be binding, in all cases where they endeavoured to gain an advantage by improper artifices. One strong reason for their protection is, that they are incapable of fully comprehending the obligation of moral duties. The law presumes that their understanding has not arrived at maturity. If an infant wishing to engage in trade or commerce, should purchase goods on credit, representing himself to be of full age, this, though extremely reprehensible, would not make the contract obligatory. So, if under a similar misrepresentation he should borrow money, and give his bond for it, payment could not be compelled.

Now, what was the fraud which could have been established by the evidence offered in the present instance? As to a general allegation that the defendants would give evidence to prove fraud, it is not to be regarded. That kind of notice is not sufficient. The plaintiffs must be informed of the particular acts of fraud intended to be proved, in order that they may know what it is they have to answer. The particular acts specified, in the notice in this case were, that the infant executed a release in collusion with her guardian, having first chosen him guardian, for the purpose of cheating the defendants, and then deceived the defendants by persuading them that their title would be confirmed by the release; and, further, that having thus deceived them, she prevailed on them to pay her three hundred pounds, as her share of her mother’s estate. These appear to me to be circumstances much too weak, to make out a case, in which this infant should be deprived of her land. She told no falsehood, she did not pretend to be of full age. And the probability is, that acting under her father’s influence, she was ignorant of the law, and really supposed that the release of her guardian and herself would confirm the title of the defendants. It is not to be imagined, that a girl of seventeen should be acquainted with the law of contracts. And what man of common prudence could be deceived by her assertions in matters of law? Why did not the defendants consult their own counsel, rather than rely on the opinion of a child ? Whether it is honourable in her, and her husband, to sue for the land, after her having received the value of it in money is another matter, with which this Court has nothing to do. But I am clearly of opinion, that there was nothing in the evidence offered by the defendants, which should make the plaintiffs’ ease an exception from the general rule, that an infant can make no contract by which he can be divested of his real estate. But there are other matters to be considered. The defendants contend, that they should have been permitted to give in evidence, the will of James Hamilton, by which he devised large property to his daughter Catherine, which is now enjoyed by her and her husband; — that this made a case of election, in which the plaintiffs could be compelled to relinquish, either the property devised by the will, or that which was claimed by Catherine as one of the heirs of her mother. But this is not a ease to which the principle of election is applicable. A man who takes one piece of property under a will, shall not be permitted to take another in direct opposition to it. He must either abide by the will or reject it, in toto. A. has two acres of land, cine of which he holds in tail, and the other in fee. If he devises the acre held in fee to his eldest son B., and that held in tail to his second son C, B. (the heir in tail,) cannot take the acre held in tail, as heir in tail, and that held in fee, under the devise in the will, — he must make his election to take one or the other, but cannot take both. So, in the present case, if James Hamilton had devised the land in dispute to the defendants, and other land to his daughter Catherine, he might have been put to his election, to take one or the other, but could not take both. But that is not the ease — he has made no devise of the land claimed by the defendants, and therefore Catherine does not contradict the will, by suing for the land sold by her father to the defendants. But the defendants are not without remedy. They have James Hamilton’s covenant to convey this land, with a good title free from all incumbrances. An action lies on this covenant, in which, if damages are recovered, an execution may be levied on the land devised to Catherine Jenkins the plaintiff. It appears, on the whole, then, that the evidence offered by the defendants would have been of no avail, if it had gone to the jury; consequently, that the court were right in rejecting it. I am therefore of opinion, that there was no error, and the judgment should be affirmed.

Judgment affirmed.  