
    Margaret Lester, Administratrix of Bannister Lester, deceased, vs. Hugh Frazer, Administrator of Benjamin P. Frazer, deceased.
    Where a female infant before marriage entered into a settlement by which she conveyed her real estate to the uses of the marriage and the issue thereof, and died during infancy, leaving a son who lived eleven years after attaining full age, without calling the settlement in question, and died leaving issue; on a bill by the creditors of the son to charge the real estate derived from the mother with the payment of his debts, on the ground, that the settlement was void, being made by the mother while an infant: — held, that at most the settlement could only be regarded as voidable, and no election having been made to avoid it, the creditors had no right to interfere, and the bill was dismissed. [*537]
    The question whether a female infant is hound by marriage articles, by which her own real estate is settled to the use of the marriage discussed, and the English cases considered. [*538]
    In England while it has been held that an infant wife who had accepted a jointure was barred of dower under the stat. Hen. 8, it seems to he settled she is not bound by a settlement before marriage disposing of her own real estate. [*538] Regarding the point settled in England, it becomes a question, how far we are bound by it, considering the difference in our circumstances, habits and institutions. [*539]
    What contracts of an infant are void, or voidable only. [*540]
    Whatever may be the rule as to executory contracts, it is clear that the executed contract of an infant is voidable only, and only the infant or his legal representatives can avoid it. [*541]
    Georgetown, February Term, 1836.
    The following Circuit decree presents the case:—
    
      • De Saussure, Chancellor. The first question which arises in this case, is whether the .real estate of the late Mrs. Frazer, the wife of the Rev. Hugh Frazer, included in her marriage settlement, made in 1190, when she was a minor, passed and goes under that instrument, and according to its provisions; 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 v. Drury, 2 Eden, 39 — after seven days argument of the ablest counsel in England, it was decided in 1161, by the Lord Chancellor, Northing-ton, among other things, that the statute Hen. 8, extends to adult women only,-and that notwithstanding a jointure on an infant, 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 50) the question to be, whether sitting in a Court of Equity he could bind an infant to a specific performance of an agreement, and bar her from claiming her dower at law, and her share of the personal estate; and he came to the conclusion that he could not; for he could not be satisfied that the statute enabled infant girls to agree to settlements to bind themselves, and t© bar them of their legal provisions— dower. On an appeal to the House of Lords, it was directed,* r*ggo after argument by very able counsel, that the opinion of the judges L 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 21 Hen. 8, ch. 10? (which statute is of force in this State.) There were seven judges present who delivered their opinion 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 judges, in the opinion 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 grandson of Lord Northington, in a valuable note at the end of the case, (page 65,) states that great doubts were afterwards 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. See 18 Ves. 215. Mr. Eden then goes on to state, that the result of subsequent authorities is, that an infant cannot be bound by 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 fetter 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 money 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. p. 244,) considers the doctrine settled by Lord Eldon’s decisions in Milnor v. Harewood, 18 Yes. 259; and on examining that case, he says, (p. 215,) 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 to be settled *K9i -i 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 of infants in marriage settlements. I am not aware that these have ever been questioned, or their binding efficacy on 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 real estate of the late Mrs. Frazer (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. Her real estate, therefore, descended on her death, according to law, one-third to her husband and two-thirds to her infant son, 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. Frazer, 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 plaintiff is founded on a note of hand, alleged to have been signed by the said B. P. Frazer in his lifetime, 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 the plaintiff’s bill, admits that he has possessed himself, as administrator, 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 parts. With respect to the personal e®f^te, 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 with 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 1824, and during the lifetime 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 since held the said land, having paid the said sum, which has gone in part satisfaction of the numerous creditors of the said B P. Frazer, many of whom had liens long before the claim of the plaintiff, by note in 1880, was even in existence. Wherefore, even if the demand of the plaintiff had been established, which is denied, there remain no funds in the hands of the defendant, out of which such demand could be satisfied. Upon these allegations in the answer, it would be in the course of the Court, that a reference should be had before the Commissioner, who (after the plaintiff had established her 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 Waecamaw, commonly called Clegg’s Point, as the property of the said Benjamin, and at the sale thereof, by the sheriff of Georgetown district, 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 Benjamin; at which time and place the said Hugh Frazer undertook and 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 otherwise bid, that he, the said Hugh Frazer, as agent and trustee of the creditors, would sell the said plantation for its full and actual value, and apply the proceeds to the payment of their debts ; but that the said Hugh Frazer has received the rents and profits of the said plantation, and has not resold the same, or applied the proceeds of the plantation to ^satisfy the said judgments and other creditors, and applied the remainder of the assets in his hands to <- pay the debt due to the deceased B. Lester ; and the bill prayed relief thereon. The amended bill set forth more fully the grounds of the claim, and of the complaint against the said Hugh Frazer, and required a full answer to its allegations as to the estate which his son, the said Benjamin P., was entitled, and insisted upon a discovery thereof, and the application of the same to pay the debts of the creditors ; more especially as he, the said Hugh, had purchased in the lands at a very low rate and without competition, avowedly on the ground that he would pay the creditors of his said son the full value of the said lands.
    The answer of the Rev. Hugh Frazer, as administrator of B. P. Frazer, admitted that the personal estate came into his hands to a small amount, which had been applied to 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 admitting that it descended to his son, B. P. Frazer (which was questionable under the marriage settlement), he, the defendant, had become the bona fide purchaser thereof; and that with respect to the alleged promises to the creditors, and 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 wished to make a bid for 'the lands, and he deterred no person from being a purchaser. That he may have said at the sale, 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 enabled to pay his son’s debts-; but that this was uniformly a voluntary declaration, and that he believed the sum of three thousand dollars (at which the place purchased was knocked off to him) was just that amount more than the interest of his son therein. The defendant further answering 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.
    .-i *The allegations and the answer involve a serious question — It J is no less than a charge of misrepresentation, and an attempt to hold to his 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 into 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 re-sale 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 Point. The 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, plaintiff produced, at the hearing of the cause, a letter from the defendant to the sheriff, Mr. Huggins, dated 6tli July, 1821, after he 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 Waccamaw lands, which orders he attributed to some misunderstanding among the parties, 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 demands against his son Benjamin ; he adds that he had had a conversation with the attorneys and others, who were all willing to wait for payment. That the sale was gone through for form, for the only bid was made by a friend of his for three thousand dollars, which he promises to pay speedily. At the hearing of the case, Mr. Shaw was examined for the plaintiff, and testified that he was present at the sale of one of the plantations of 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 Frazer on the subject; Mr. 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 himself, and he wished the creditors not to interfere with his bidding. The witness told Mr. H. Frazer that any bid would pay his demand, as he was among the earliest of the creditors, and therefore had no interest in entering into any arrangements, and his means being small, he could not bear delay ; Mr. Frazer *said there were persons who induced his r*r ok son to make improper purchases, and if he had the control of his L 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 Mr. 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 his 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. Coggeshall was present, as Marvin’s adviser. On being reexamined, Mr. Shaw testified that he did not remember whether the land was knocked off to Mr. Frazer; the general impression was, that the land did not sell for half its value. Witness considered Mr. Frazer’s declarations as general, and as applying to all his son’s property, and not to any particular land ; and from Mr. Frazer’s declarations, believed he was acting for the benefit of his creditors, and that his purclffesing 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 plaintiff’s counsel produced the marriage settlement of Rev. Hugh Frazer and Miss Porter, March, 1196. She was then under age; her son, B. P. Frazer, was born in l'79í ; the mother 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 part of the case. The answer of the defendant, a respectable clergyman, is certainly at variance with the letter of 6th of July, 1824, (above cited,) and with the evidence of Mr. Shaw, a respectable witness. Both the witnesses are entitled to credit; but there must be a failure of recollection on one side or the other, which is not to be wondered at, after a lapse of eleven or twelve years ; 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, that though he does not feel himself legally bound to make a re-sale 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 $3000, at which he had bid off the land. Now, if this be correctly stated, as we 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 ease 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 of the value of the real and personal estate of the said B. P. Frazer, 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 plaintiff.
    From this decree, the defendant appealed on the following grounds :—
    1. Because his Honor decided, “that the real estate of Mrs. Frazer 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 respectfully 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 herself, 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, and therefore, no reference was necessary as to the payments made by tbe 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 -I debt due to the plaintiff, or assets in the hands of the defendant.
    
      Dunkin, for the appellant.
    
      Hunt, contra.
   Chancellor Johnston

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:—

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

2. If not, whether any other than herself, or her legal representatives, can avoid it ?

They arise out of marriage articles entered into between the Rev. Hugh Frazer and Elizabeth Clegg Porter, in 1T96, 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 between 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 tvife, died in 1191, being then under the age of twenty-one years. Benjamin, the son, 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 plaintiff 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 husband and wife during their joint Hives, remainder r*ggg to the survivor, and on the death of the survivor, remainder to L the children &c., as before stated ; and that nothing like fraud in obtaining the marriage articles has been charged or pretended. So that the questions propounded are unmixed questions of law.

The question whether a female infant is, or is not bound by a marriage settlement which disposes of her own real estate, is one of much interest, and about which there has been great diversity of opinion amongst the most learned lawyers and judges of the English 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 settled opinion of my own. '

In Drury v. Drury, 2 Eden, 39, the question was, whether an 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. 8th ; 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 Northington, 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 matters, extends also to marriage settlements of real estates by female infants. That as an incident to' marriage, the law had endowed 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 of any contract between the husband and wife in relation to their estates. The 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 Wilmot, 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 infant over twelve years is capable of entering into the contract of marriage, into the consideration of which, the settlement of her real estates enters very largely, and without which the marriage might never have been had, and as the marriage is ^indissoluble, r^Kga the settlement ought to be binding. See 2 Eden, 64-72, Wilmot’s *- Notes, 184. And in this opinion Mr. Atherly, in his treatise on Marriage Settlements, pp. 39, 40, after a full review of the authorities, concurs, regarding the direct question as not then entirely settled. It came up again incidentally in Durnford v. Lane, 1 Bro. C. C., 106, when Lord Thurlow expressed himself favorably towards the judgment of Lord Northington, in Drury v. Drury, and in Milner v. Harewood, 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 there, it becomes a question how far we are bound by it. The Act of 1112, while 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 growing out of our own peculiar habits and institutions. It would be unsafe, therefore, implicitly to follow the English Courts, without inquiring whether, under the circumstances existing here, a different rule 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 a much earlier age 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 no difficulties in the way, or rather of encouraging them, is peculiarly 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 restraint upon th.em 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 wife brings with her real estate on marriage, 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, espe*5401 cially as ^h© va^ue °f bbe rea,l *©state of the wife might be regarded J 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 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 most cases 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, consisting 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,) to 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 seem 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 relieve against positive frauds 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 them, 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 before we venture upon it.

[*541 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 there is a class of contracts, (within which, I propose to show that this case falls,) which are considered as voidable only, and that the election to avoid or abide by them, is a personal privilege, of *which no other than the infant, or those claiming as legal representatives, 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 in Zouch v. Parsons, 3 Bur. 1194, 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 Boycott, 2 H. Black. 511, 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, is voidable only at his election. 2 Kent Com. 192-3.

These rules apply obviously to executory contracts, 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. Eor example: an infant makes an advantageous 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 representatives are well satisfied to acquiesce in it — can it be that a stranger would be permitted to enter 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, p. 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 hand are void, but all gifts, 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 representative alone, are competent to avoid a voidable contract, is not, I think, questioned anywhere. That doctrine is distinctly recognized by Lord Eldon in Milner v. Harewood, and in that all the authorities agree.

*5421 ®nS^and> 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 deed 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 estate 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 plaintiff’s bill must therefore be dismissed, so far as it seeks to charge the settled estate; each party to pay their own costs.  