
    EULA M. CHANDLER v. J. W. JONES et. al.
    (Filed 22 November, 1916.)
    1. Contracts Voidable — Infants.
    . A contract made with, an infant is voidable, and he may ratify or dis-affirm it at his election, upon his attaining his majority.
    2. Same — Benefits Retained — Credits—Purchase Price.
    When an infant has received money under a contract he has made, and it is consumed- or wasted during his minority, he may recover the same; but if it has been used for his benefit and invested in property which he has in hand, he cannot retain the property without allowing a just credit for the money received by him.
    3. Same — Majority—Acquiescence—Ratification.
    Where money has been paid to an infant under a contract made with him during his minority which he has invested in lands, his continuing to hold and enjoy the property after reaching his majority is evidence of his ratification of the contract, which has been held to be presumed after three years.
    4. Same — Feme Covert — Disability Removed — Statutes.
    A minor contracted for the sale of her lands and became a feme covert before reaching her majority, with agreement that upon payment of a certain sum the lands would go to the purchaser’s wife for life, and at her death to him. The purchaser paid the feme grantor and her husband the purchase price, with which they paid off a mortgage on her lands. Held, whether the mortgaged lands were those of the wife or not, she was advantaged or benefited by the payment, at least to the extent of her dower right, and she is held to have ratified her contract by her acquiescence twenty-three years after receiving the payment, nineteen years after attaining her majority, and more than three years after the statute had removed her disability as a married woman.
    5. Same — Acts of Disaffirmance — Actions—Estates Outstanding.
    An infant contracted with a husband to convey her lands for a certain consideration, a life estate to the wife with remainder to her husband, the purchaser, and received the agreed price therefor. Held, after coming of age the party could have evinced her disaffirmance of her contract hy the return of the purchase money or some other unequivocal act, though she may not be permitted to sue for the land during the continuance of the outstanding life estate; and the failure of the infant to take such action after coming of age may he evidence of the confirmation of the contract.
    Appeal from Ferguson, J., at August Term, 1916, of Guilfobd, in an action to recover tbe sum of $600 alleged to be due by contract.
    Tbe defendant admitted tbe execution of tbe contract and alleged tbat be bad paid tbe sum of $500 thereon.
    On 30 April, 1890, tbe defendant and bis wife entered into a contract under tbe terms of wbieb tbe defendant was to become tbe owner of a certain tract of land if be survived bis wife, upon tbe payment of $600 to tbe plaintiff, wbo was then Miss Eula Yanstory, and it is upon tbis contract tbat tbe plaintiff is suing 4o recover tbe $600.
    Tbe defendant was examined as a witness in bis own behalf and testified as to tbe payment of $500 as follows:
    Q. State whether or not you ever made any payments to tbe plaintiff on tbis contract, and, if so, bow much?
    To tbis tbe plaintiff objected.
    By permission of tbe court, tbe witness was examined by plaintiff’s counsel, and tbe witness testified tbat tbe plaintiff was Eula Yanstory before sbe was married; tbat tbe alleged payment was made seven months after her marriage, and while sbe was yet only 16 or 17 years of age.
    Upon objection and exception by plaintiff to each and all of tbe following questions and answers, taken and noted in apt time, Mr. Jerome, tbe defendant’s counsel, was allowed to proeéed as follows:
    Q. State whether or not Mrs. Chandler, tbe plaintiff in tbis case, was married at tbe time you made tbis payment? A. Yes; sbe was married seven months before tbat. Sbe was married on tbe 2d day of February, and it was in tbe fall when tbe payment was made, tbe November after her marriage. Tbe mortgage will show tbe date of tbis payment.
    Q. How came you to pay her tbe sum of $500 on 24 November, 1893 ?
    Q. On 24 November, 1893, state whether or not you paid Mrs. Chandler any money. A. A check for $500.
    Q. What was done with tbis check? A. Turned over to tbe man of whom they bought tbe land, J. A. Lambeth, wbo is so ill be could not come to court, and tbe mortgage was canceled, and it is in bis possession.
    Q. State whether or not tbat check was collected. A. Yes, it was collected.
    Q. Tbat was in 1893? A. Yes, sir.
    
      Q. How old was the plaintiff at that time? A. She had been married a few months.
    Q. "Was she married in the early part of the year? A. Yes, the first of February.
    Q. And this payment was made in November afterwards? A. Yes, the money was paid.
    Q. Since you made the payment, in November, 1893, has the plaintiff ever claimed or demanded the payment of that $500 of you?
    Q. When did you first hear of her claiming you had not paid her the $500? A. Soon after my wife died; it was not due until she died. I had the money on hand and let them have it as an accommodation, and I have been out of the use of the money very nearly twenty-three years.”
    The wife of the defendant died in November, 1915.
    At the conclusion of the evidence, the court, “being of the opinion that the alleged payment having been made to the plaintiff when she was a minor not exceeding 16 years of age in November, 1893; and Mrs. Jones, wife of the defendant, not having died until November, 1915, and it not appearing to the court or claimed by the defendant that the money alleged to have been paid to the plaintiff was invested in land, the title to which was made to the plaintiff, the court is of the opinion that the alleged payment to the infant plaintiff is not a payment under the contract, and excludes the evidence,” to which the defendant excepted.
    His Honor then directed the jury to answer the issue in favor of the plaintiff, and the defendant excepted.
    Judgment was entered upon the verdict, from which the defendant appealed.
    
      King & Kimball for plaintiff.
    
    
      Cooke & Fentress and Jerome & Jerome for defendant.
    
   AlleN, J.

It was held by his Honor, as matter of law, that the payment of $500 by the defendant to the plaintiff, while she was a minor, did not operate to discharge pro tanto his debt to her, and, as the jury was not permitted to consider the evidence introduced by the defendant, we must, for the purposes of this appeal, accept it as true, and give the defendant the benefit of all reasonable inferences that may be deduced from it.

When it is so considered it establishes that a contract was entered into on 30 April, 1890, by the defendant and his wife, by virtue of which the defendant was to become the owner of a certain tract of land if he survived his wife, upon the payment of $600 to the plaintiff, who was then Eula Yanstory; that the said Eula Yanstory intermarried with A. D. Chandler before she was 21 years of age; that she and her husband bought a tract of land of one Lambeth; that there was a mortgage upon the land; that the plaintiff and her husband requested the defendant to advance the sum of $500 on the amount due by him to the plaintiff under the contract with his wife for the purpose of paying off and discharging'the mortgage on the land bought by the plaintiff and her husband; that the defendant advanced the said sum to the plaintiff and her husband, and that it was used in paying off and discharging the said mortgage; that the plaintiff became 21 years of age about nineteen years ago, and that she has done no act disaffirming said payment until the commencement of this action.

Do these facts furnish evidence of a ratification by the plaintiff or can she now disaffirm the same and recover the full amount of $600 ?

The contract of an infant is voidable and not void, and it may be either ratified or disaffirmed, upon attaining majority, at the election of the infant.

If money is paid to an infant upon a contract, and it is consumed or wasted, the infant may recover the full amount due under the contract; but if the money is used for his benefit and he has in hand property in which it has been invested, he cannot retain the property without allowing a just credit for the money paid to him; and if after becoming of age he continues to hold the property and uses it or disposes of it, this is evidence of a ratification. Caffey v. McMichael, 64 N. C., 508; Skinner v. Maxwell, 66 N. C., 48; MacGreal v. Taylor, 167 U. S., 688.

In the last case cited, and in the note to this case as reported in 42 Law Ed., p. 326, a great many authorities are cited in support of these principles.

Let us then see if the plaintiff has received any benefit from the payment of the $500 by the defendant which she still enjoys, and whether since she became of age she has done any act ratifying the payment made by the defendant.

If there was a mortgage upon the land bought by the plaintiff and her husband, and if at their request the defendant advanced $500 to discharge the mortgage lien and it was so used, then upon a disaffirmance of the payment by the plaintiff, the defendant had the right in equity to be subrogated to the right of the creditor who held the mortgage, and to enforce payment of the mortgage as against the plaintiff and her. husband.

This is directly decided in the case of MacGreal v. Taylor, supra, and is in accord with the decisions in Cutchin v. Johnston, 120 N. C., 55, and Brown v. Harding, 171 N. C., 691.

If so, the plaintiff and her husband, if they still retain the title to the land bought from Lambeth, are holding the land freed of an encumbrance which has been paid off by the defendant with money which the plaintiff is now seeking to recover, and if tbe Lambetb land is not now owned by tbe plaintiff and ber bnsband, it must bave been conveyed by tbem after sbe reached ber majority, clear of tbe mortgage lien; and in either event it would furnish evidence of a ratification.

It does not clearly appear from tbe record whether tbe title to tbe Lambetb land was taken in tbe name of tbe plaintiff or ber husband; but if tbe title was to tbe latter, which is tbe strongest view for tbe plaintiff, and it has not been disposed of, tbe plaintiff derives tbe benefit from tbe payment of tbe money of having ber dower right cleared of tbe encumbrance and of having tbe defendant to forego bis right to be subrogated to tbe right of tbe mortgage creditor, which, of course, be could not do if be is allowed tbe credit of $500.

Tbe MacGreal case is also authority for tbe position that if tbe plaintiff joined in a conveyance of tbe Lambetb land free from encumbrances after becoming of age, with knowledge of all tbe facts, that this would be a ratification, and that if sbe and ber husband now own tbe land, that they bave in band, in legal effect, tbe money of tbe defendant, since they do not recognize tbe right of tbe defendant to be subrogated to tbe rights of tbe mortgage creditor.

In that case Mrs. MacGreal, while an infant, executed a deed of trust to secure $8,000 borrowed from Mrs. Utermehle, which was used in paying certain mortgage debts on the land conveyed in tbe deed of trust, and when sbe came of age she refused to abide by tbe deed of trust, on account of infancy.

Tbe Court in dealing with tbe question said: “These debts having been paid by Mrs. Utermehle, the appellees are entitled, in equity, to be subrogated to tbe rights of tbe persons who held them, and who were about to foreclose tbe liens therefor when tbe application was made to Mrs. Utermehle for the loan of $8,000 to be used in meeting those debts and in improving tbe lot in question. 1 Jones Mortg., 874, 877, and authorities cited. And within tbe meaning of tbe rule that, upon tbe infant’s disaffirmance of bis contract, the other party is entitled to recover tbe consideration paid by him which remains in tbe infant’s bands or under bis control, it may well be held — and gross injustice will be done in this case if it be not so held — that tbe money borrowed from Mrs. Utermehle is, in every just sense, in tbe hands of Mrs. MacGreal. To say that tbe consideration paid to Mrs. MacGreal for tbe deed of trust of 1889 is not in ber hands, when the money has been put into ber property in conformity with the disaffirmed contract, and notwithstanding such property is still held and enjoyed by ber, is to sacrifice substance to form, and to make the privilege of infancy a sword to be used to tbe injury of others, although tbe law intends it simply as a shield to protect the infant from injustice and wrong.”'

In addition to -this, tbe plaintiff bas waited nearly twenty-tbree years after tbe payment was made, nineteen years after attaining ber majority, and more than- three years after ber disabilities as a married woman were removed, without giving any indication that she disaffirmed tbe X^ayment or that she would seek to recover tbe full amount of $600 from tbe defendant, and it was decided in Weeks v. Wilkins, 134 N. C., 524, that an infant will be held to have fully ratified bis contract unless be disaffirms it within a reasonable time, which is three years after becoming of age.

It is true, as contended by tbe plaintiff, that she did not have a right of action to recover tbe $600 until tbe death of tbe wife of tbe defendant, which was in October, 1915, and that tbe bringing of an action is a disaffirmance; but this contention was also met in Weeks v. Wilkins; and it was held that although tbe right of action did not exist, that tbe infant could in some other way give evidence that she did not intend to .abide by tbe contract.

In tbe Weeks case tbe plaintiff bad executed a deed, while an infant, for land in which bis mother owned a life estate. He commenced an action to recover tbe land more than three years after becoming of age. and within three years after tbe death of bis mother. Tbe Court quotes from Devlin on Deeds: “Tbe most reasonable rule seems to be that tbe right of disaffirmance should be exercised within a reasonable time after tbe infant attains bis majority, or else bis neglect to avail himself of this -privilege should be deemed an acquiescence and affirmation on bis part of bis conveyance. Tbe law considers bis contract a voidable one on account of its tender solicitude for bis rights and tbe fear that be may be imposed upon in bis bargain. But be is certainly afforded ample protection by allowing him a reasonable time after he reaches bis majority to determine whether be will abide by bis conveyance executed while be was a minor, or will disaffirm it. And it is no more than just and reasonable that if be silently acquiesces in bis deed and makes no effort to express bis dissatisfaction with bis act, be should, after tbe lapse of a reasonable time, dependent upon circumstances, be considered as fully ratifying it,” and adds: “We think this is a just and reasonable rule.” Tbe Court then says: “Tbe statute gives him three years after arrival at majority within which to bring bis action against a dis-seizor. It seems to us that tbe same time, by analogy, should be fixed as tbe period within which be should determine whether be will dis-affirm bis deed. But it is said that Mrs. Hester Weeks owned tbe life estate, and that pending such estate be bad no right of action to sue for tbe possession of tbe land. We do not think this material. His right to disaffirm bis deed was entirely independent of bis right to tbe possession of tbe land. He could easily have disaffirmed by returning tbe purchase money or by some other unequivocal act.”

This case was affirmed on both points in Baggett v. Jackson, 160 N. C., 32; and if applicable to deeds, why should not the same rule prevail as to other contracts?

We are therefore of opinion that there is evidence of ratification which ought to be submitted to a jury.

New trial.  