
    H. R. W. Hill vs. Thomas Anderson.
    An infant, -who has disposed of his personal property, and has done no act to confirm the contract, and has pursued his remedy in good time after coming of age, is entitled to recover it back.
    A., being an infant, bought of E. a tract of land for $8000, and gave in payment five slaves, and his notes for $375 and $1500 ; the slaves were after-wards sold to H., under execution, as the property of E.; A. becoming of age, filed a bill against E. and H., to rescind the contract, and recover back his slaves ; held, that A. was entitled to the relief sought.
    An executed contract by an infant, with reference to personal property, may be rescinded by the infant, as well as a contract executory ; there is no distinction between them in the law.
    A sMÍ-vendee of the vendee of an infant, of personal property, even though a purchaser for a valuable consideration, without notice, cannot hold the property as against the infant; the doctrine of notice seems applicable to purchasers of real estate only.
    On appeal from the decision of the superior court of chancery.
    Thomas Anderson filed his bill against Edward Exum and James W. Exum, and H. R. W. Hill. In it he states, that on the 18th of September, 1838, he purchased of defendants, Edward Exum and James W. Exum, at the price of $8000, the following parcels of land, to wit, the N. W. quarter of section 34, and the N. E. quarter of section 33, in township 12, range 2 east, lying in the county of Yazoo, and state of Mississippi, together with seventy-five shares of bank stock, at $100 a share, alleged by said defendants to be secured by a mortgage on said land, to the Northern Bank of Mississippi; that in consideration for the land and bank stock, he delivered in payment to Edward and James W-Exum, five negro slaves — four boys and one woman — together with two promissory notes, one for $375, due about the 1st January, 1839, and the other for about $1500, due about' the 1st January, 1840; that said Edward and James W. Exum sued out an attachment against him, on the note for $375, and recovered judgment against him on the same, in the circuit court of Yazoo county, state of Mississippi, for $402=gk, besides costs of suit, as appears by a copy of the record of said judgment, filed with the bill; that the slaves sold by him had passed into the hands of defendant Hill, who sets up claim to them, and then had them in the state of Mississippi; that Edward and James W. Exum are insolvent, and were so at the time of the sale to complainant; that at that time there were many judgments in the United States circuit court for the Southern District of Mississippi, against defendant James W. Exum, which are still unsatisfied, all of which, at the time of the sale, Edward and James W. Exum concealed from complainant, and he was ignorant of the same ; that these judgments are a lien on the land, being of prior date to the deed to complainant.
    The bill further states that, at the time the contract with defendants was completed, he was a minor, under twenty-one years of age; that his mother, Sophronia Anderson, rvas then his guardian, appointed such by the probate court of Yazoo county; that complainant was not twenty-one years of age until May, 1840 ; that ever since he was of age he has resided in the state of Alabama, and has never since that time been in the state of Mississippi; that he has never directly or indirectly confirmed his said contract with Edward and James W. Exum, since he became of age.
    The bill prays for a decree, that the contract between complainant and Edward and James W. Exum be rescinded ; that the judgment against complainant be enjoined, and the note for $1500 be delivered up to be cancelled ; and that defendant Hill surrender the negroes to complainant, and account for the hire of them since they came into his possession. This bill was filed November 5th, 1840.
    James W. Exum having departed this life since the filing of the bill, and no person having administered on his estate, the suit abated as to him, and a pro confesso taken against Edward Exum.
    Hill answered, denying any knowledge of the trade between complainant and Edward and James W. Exum, and of the attachment sued out by the latter ; admits that the slaves have come into his possession, and states that he purchased them for a valuable consideration, at sheriff’s sale, as the property of Edward and James W. Exum, and refers to a copy of the execution under which they were sold, by the sheriff of Yazoo county, filed with the answer : thinks it more than likely that Edward and James W. Exum are insolvent, but knows nothing of the judgments against James W. Exum, as alleged in the bill, nor whether their existence was concealed from complainant ; knows not whether complainant was a minor at the time of his contract, nor whether he has done anything to confirm said contract; relies upon his being a bona fide purchaser for his defence.
    The deposition of James Y. Clark proved that defendant Hill told him he had the negroes in his possession ; that they were bought by his agent, Morgan L. Fitch, at sheriff’s sale; he regretted that his agent had bought them, because the judgment against the Exums could have been satisfied out of other property.
    Sophronia Anderson proved that she is the mother of complainant; that he was bom on the 9th May, 1819; that he has resided in Marengo county, in the state of Alabama, since he became twenty-one years of age; that until that time she was his guardian ; that she was present when Edward Exum took possession of the negroes, which was some time in December, 1838 ; that she forbade his taking possession of them, and gave him notice that she would institute suit for the recovery of them; that Exum was armed, and carried off the negroes against her remonstrances.
    John M. Anderson testified, that complainant hired the slaves in controversy to deponent, in this county, in 1838; complainant, while under age, sold them some time in the year 1838, to Edward and James W. Exum, who came to deponent’s house, and forcibly drove them off, against the will of the deponent, and of complainant’s guardian. Deponent believed he had a right of possession of the negroes, by contract of hire, until the 1st of January, 1839, and he sued out a writ of habeas corpus 
      against the Exums, to recover the possession of them, and by agreement they were allowed by deponent to remain in their possession. Deponent employed Morgan L. Fitch as his attorney, to prosecute the writ of habeas corpus; that Fitch was also employed by Mrs. Sophronia Anderson, guardian of complainant, to recover the negroes from the Exums. He also testified as to the value of the negroes and their hire at the time of the sale.
    Henry "Vaughan testified that complainant was born some time after November, 1818 ; in the year 1838 complainant had, in Yazoo county, several negroes, viz., Sela and her children, four or five in number, which negroes were the property of complainant, and were then (in 1838) in the employment of John M. Anderson. Deponent saw them, in the latter part of 1838, in the sheriff’s possession, and understood they were redelivered to the Exums, under a pledge to abide the result of the suit for the recovery of them, about to be commenced" by Mrs. Anderson. Morgan L. Fitch acted as attorney for John M. Anderson, in prosecuting the writ of habeas corpus; he was also employed by Mrs. Anderson, to recover the negroes from the Exums, for the benefit of her ward, the complainant; deponent saw the negroes some time afterwards sold at public auction, by the sheriff or marshal; Morgan L. Fitch was present at the sale, and deponent understood that he bought them for H. R. W. Hill.
    The chancellor decreed that the contract be vacated and held for naught; that the title to the land sold be divested out of Anderson, and revested in the Exums; that the note for $1500 be cancelled, the note for $375 be avoided, and the judgment on it perpetually enjoined; and that Hill deliver up the negroes purchased by him of the Exums to the complainant.
    From this decree Hill appealed to this court.
    
      W. R. Miles, for appellant.
    The bill was filed in this cause, for a rescission of a contract between Anderson and Exum, on the ground, 1st. That Exum had committed a fraud upon Anderson ; and 2d. That Anderson was a minor at the date of the contract.
    
      The negroes in controversy are in the possession of Hill, who purchased them at execution sale, as the property of Exum. There is no proof of fraud, or notice of it to Hill, who is shown to be a bona fide purchaser, and the plea of infancy is, therefore, the only question in the case.
    The doctrine, that a contract made during .infancy is voidable at the election of the infant making it, is not denied ; but how far his act, disaffirming his own contract, will operate on the rights of third persons who, intermediate the execution of the contract and its disaffirmance, have bona fide and without notice become the owners of property sold by the infant, is a different question. Whilst, therefore, as between the infant vendor and his vendee, the court without hesitation would annul the contract, yet it is difficult to perceive on what principle the' court can extend its decree to a third person, who had no dealings with the infant, who did not know such a person lived, and who at sheriff’s sale, under a judgment against the infant’s vendee, became the purchaser of this property, without notice.
    But passing this question, which is thrown out for the consideration of the court, we insist that the complainant, by his own bill, has stated himself out of court. It will be seen by the record, that the complainant voluntarily paid the negroes now in controversy to Exum, in part for the purchase of a tract of land. Now although the executory contracts of an infant are voidable, yet where he pays money on his contract, he cannot, by avoiding the contract, get back the money he has thus paid. 8 Taunt. R. 508. 4 Cond. Eng. Com. L. R. 189. McCoy v. Hujfeman, 8 Cow. R. 84. If he cannot get back money, by what species of logic may it be proved that he can get back property 1
    
    Apprehending this difficulty, perhaps, complainant has proceeded to take proof, showing that he did not deliver these ne-groes, as is alleged in his bill. But this cannot be done. It is not more trite than true, that the allegata el probata must correspond. It is not less true that no relief, inconsistent with the allegations in the bill, can be granted. 13 Ves. 114-119. 1 Yes. Jr., 416 - 426. 3 lb. 402. 1 Johns. Ch. R. Ill -117. 1. Munf. R. 554, n. 3 lb. 29.
    The allegation in the bill, therefore, that these negroes were paid on the contract voluntarily, must stand in opposition to this proof. Entertaining for the chancellor the highest respect, I must be permitted to say that his decree in this case is clearly erroneous.
    
      William G. Thompson, for appellee.
    The contract in this case is, unquestionably, such an one as may be avoided by the complainant, as against the Exums, his immediate vendees. He has not lost his right to do so, by even so much as an implied confirmation, after his coming of age. He was residing in another state when he came of age, and allowed but a short time to pass by after that period, before commencing this suit.
    I think it equally clear that the complainant may avoid his contract, as against defendant Hill. If an infant give or sell his goods, and deliver them with his own hand, the act is voidable only; the fact of possession by the vendee would be evidence of a delivery in case of an adult, but in case of an infant vendor, there should be strict proof of a personal delivery. But if he give or sell goods, and the donee or vendee take them hy force of the gift or sale, the act is void, and the infant may bring trespass. Stafford v. Roof, 9 Cow. 626. There is ample testimony here of the fact, that the Exums took off the slaves by force and violence, without any pretence of a delivery by the complainant. No subsequent purchase from the Exums could make good a contract which was void between them and complainant.
    Where the sale by an infant is merely voidable, his privilege is not destroyed by a sale by his vendee. It is broadly laid down in all the authorities, that the infant may avoid his contract at any time, without a restriction as to particular parties, unless he has confirmed the contract after coming of age, either expressly or by implication. By several common law courts of the highest respectability, the note of an infant is considered void, and not merely voidable; otherwise, if it were once valid in the hands of an indorsee, the infant could not inquire into the consideration ; which is manifestly allowing, that the consideration of the note of an infant, in the hands of an indorsee, may be inquired into. See the case of Swasey v. Vanderhadin, 10 J. R. 33. By other courts the note of an infant is considered voidable, and not void; on the ground, that the consideration may be inquired into, when in the hands of an indorsee, as in the case of an expressly illegal contract. 4 McCord, 221.
    Hill, however, cannot be regarded as a bona fide purchaser from the Exums. There is ample proof in the cause that the agent who purchased for him, was necessarily aware of complainant’s rights at the time. Previous to his purchase for Hill, he had been engaged as an attorney in prosecuting complainant’s claim for the same property against the Exums. As to what extent the principal is affected with notice to his agent, I refer to Story on Agency, 131, 132, and authorities there cited.
    The privilege the infant has, by law, to avoid his contraéis, is given for his protection; but what protection is afforded him, in reality, if his privilege is lost at the moment his property passes out of the possession of his vendee ? Fraud might readily be practised on a confiding and inexperienced infant, by irresponsible and insolvent purchasers, as was manifestly done in this instance, and the next moment the privilege, which the law has given him for his protection, might be lost to him, by a continuation of the fraud, in a transfer of the property. Such weakness and insignificance are not to be ascribed to the law, in any case.
    It is not stated in the bill that complainant personally delivered the slaves. He might correctly say he delivered them, when in truth the act was done by an agent, or in some other way than with his own hands. He may have given an order for them, on whomsoever had possession of them. It is in proof they were actually taken by force. In such case the contract of an infant is, at the least voidable. See Bac. Ab. letter I, (3) 367. Zouch v. Parsons, 3 Burr. 1794. Fonda v. Van Horne, 15 Wend. 631. Tucker and others v. Mooreland, 1G Peters, '67. United States v. Bainbridge, 1 Mason, 82, 83. 2 Kent, 234.
    
      William Thompson, on the same side.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

Anderson filed his bill in the superior court of chancery, to avoid, a contract, on the ground of infancy. It appears that in 1838 he purchased of E. and J. W. Exum a tract of land and seventy-five shares of bank stock, at the price of $8000, giving in payment five slaves, and executing his tivo notes, one for .$375, and the other for $1500. The slaves were after-wards sold under execution, as the property of the Exums, and purchased by Hill, one of the plaintiffs in execution, through his attorney. It seems that the Exums purchased the slaves, knowing that Anderson was a minor, and against the remonstrances of his guardian. The attorney who purchased the property for Hill, had been employed to rescind the contract with the Exums, and was acquainted with the nature of their title, which was the only notice Hill had. Since the contract Anderson has resided in Alabama, and has done no act confirmatory of the -contract.

This being a proceeding by the infant himself to vacate the ■contract, it becomes unnecessary to discuss the somewhat vexed question, what contracts of an infant are void, and what voidable. In its origin it was certainly voidable, inasmuch as it is •fully proved that Anderson was under twenty-one years of age when he made it.

Against the rescission of the contract, two grounds are taken. First, that it was an executed contract, and, therefore, ca-nnot be rescinded; and second, that Hill being a bona fide purchaser of the slaves, without notice, the contract cannot be rescinded as to the slaves held by him.

First it is said, if an infant pays money on a contract, he cannot recover it back, and that these slaves were given in payment, which is like a payment in money, and they cannot he recovered back. The cases are not analogous. This was a mere exchange of property. As well might it be said, the land and bank stock were taken in payment for the slaves. An infant vendor may recover back his property, real or pér-sonal, but in such cases he must refund what he has received. The case of Stafford v. Roof, 9 Cow. 626, is directly in point. That was an action of trover, for a horse which had been sold by the infant, and for which he had been mostly paid. The defendant had possession of the horse, but there was no evidence of a delivery by the infant. Chancellor Jones adverted to the distinction between contracts accompanied by delivery, and those in which there is no act of delivery, and remarked, that possession by the vendee would be evidence of delivery in the case of an adult, but in case of an infant vendor, there should be strict proof of delivery ; and that a taking, under such a contract, would be tortious, and the action of trover was held to lie. Trover might have been a proper remedy in this case, but inasmuch as the contract was partly execu-tory, the complainant having given two notes, he has a right to the aid of a court of chancery to have the whole contract rescinded.

In many authorities on this subject, which have been examined, no case has been found which bears out the counsel in the distinction taken, that executory contracts will be rescinded, but not contracts executed; and the reason of the law is against such a distinction. True it has been held, that an infant cannot recover back money paid, in an action for money had and received. 8 Taunt. 508. 8 Cow. 84. But these authorities do not come up to the question here. The infant disposed of his personal property, and having done no act to confirm the contract, (if such act be necessary,) and having pursued his remedy in good time after coming'of age, he is entitled to recover.

Second. Is Hill, as a bona fide purchaser, without notice, protected ?- Counsel have not referred its to any authority, in support of this position, nor does it seem to meet the sanction of legal principles. It would defeat , the policy of the law. The doctrine of notice seems applicable to purchasers of real estate only.

The decree of the chancellor must he affirmed.  