
    Wheaton vs. East.
    When the court can, from the face of the contract, pronounce that it is to the infant’s prejudice, it is void; where for his benefit, (as for necessaries,) it is good: but where the contract is of an uncertain nature as to benefit or prejudice, it is voidable only, at the election of the infant.
    A deed of bargain and sale for lands executed by an infant, is only voidable, and not void'.
    The voidable deed of an infant passes his interest in the land to the bargainee, subject only to- the right of the infant to divest it by disaffir-mance after he arrives at full age.
    A deed of confirmation is not necessary to confirm a deed made by a minor.
    Any act of a minor from which his assent to a deed executed during his minority, may be inferred, will operate as a confirmation, and prevent him thereafter from electing to disaffirm it.
    When the minor has done no act from which a dissent or disaffirmance might be inferred for three or four years after he arrived at 21, but where he admitted he had sold the land, said he was satisfied, offered to exchange other lands for it, and saw the bargainee putting on improvements without objection: Held, these were sufficient acts from which to infer a confirmation.
    On the 10th of November, 1825, Wheaton sold to East lot No. 15, and conveyed to him by general warran-tee deed, for a full and fair price, to wit, upwards of ,$4000. The deed was proven and registered the same month. In the course of a few years, the lot, from the increase of the town and improvement made upon it by East, rose rapidly in value; and in 1830, Wheaton instituted his action of ejectment to recover it back, he having been a minor at the time of the sale to East.
    In the court below, m.uch testimony was introduced on both sides respecting his age and acts, and many bills of exceptions were taken to the admission and rejection of testimony, which it is unnecessary to set out.
    Wheaton’s title to the lot was made out. ' East then, read Wheaton’s deed to him, as divesting his title. Wheaton, to destroy the effect of his deed, relied upon and proved his infancy at the time of the execution of the deed. East then offered evidence of a parol and cir- , cumstantial character, to show that Wheaton, after he came of age, had ratified and confirmed his deed made to him during his infancy. This kind of testimony was objected to; and it was also contended, that the- deed was-void. Upon full argument, it was decided by the circuit judge, that the deed was not void, but voidable only, and that the evidence offered to show a confirmation of the deed after Wheaton came of age, was admissible. T’cv both of these points exceptions were taken, and a writ of error to this court.
    
      Washington, for plaintiff in error.
    1. Á void thing is incapable of confirmation. 2 Co. Lit. 516, note a. 517.
    
      2. The contracts of infants are divisible into three kinds. 1. Such as are obligatory. 2. Such as are voidable merely. And 3. Such as are absolutely void.
    The obligatory contracts of infants, are exclusively contracts for necessaries, and contracts of marriage. Properly speaking, the liability of infants'for necessaries? is the assumpsit of the law, rather than the effect of ability on the part of the infant to bind himself, even for that consideration. If it were not so, how does it happen1, that the bond of an infant, although given for necessaries, is absolutely void ? It would, therefore, be more correct to call the obligation which devolves on an infant to pay for necessaries, a liability, than to denominate u a contract.
    The marriage contracts of infants are called by their proper appellation, because such contracts are made by virtue of a legal competency to make them, clearly and distinctly conferred. The age of legal competency to make a marriage contract, in males, is-fourteen, and in females, is twelve. See 2 Kent’s Com. 67, 191-2-3; 10 Johnson, 33; 1 Campbell, 552: 11 Sergeant and Rawle,. 305: 1 Dumford and East, 40: 3 Maulé and „ , . „ ’ ^ Selwm, 481 — 2: 8 East, 330-1: 1 Johnson s Ca. 127.
    3. There is much to be met with in the books, upon the distinction which prevails between what are called the voidable and void contracts of infants, than which no more abitrary and unintelligible distinction ever was adopted; and none which has been productive of greater ■confusion and absurdity in its application. Of one thing I am entirely certain, that the distinction was first conceived for the protection of infants; but, that when. coupled with the doctrine respecting the confirmation of voidable acts, and the rules of construction which have been adopted in reference to what amounts to a confirmation, the distinction, so far from being a blessing, is a curse, and in nine cases out of ten, operates as an instrument of destruction to the infant’s rights.
    It is said by the defendant’s counsel, that this deed of Wheaton, is voidable merely; and that position is contended for, in order that, as the evidence clearly shows that he was an infant at the time of executing it, their client may have the benefit of whatever has been proved in relation to his alleged confirmation of the conveyance, after his arrival at full age.
    The distinction of void and voidable, once having obtained, it became necessary in the next place, to establish some criterion by which it might be known, whether any particular contract which migh happen to be the subject of litigation, belonged to one class or the other. It is said by Perkins, and perhaps by some .other very ancient authors, that one criterion of an infant’s contract being voidable merely, is its taking effect by delivery of hand. But, modern writers of greater eminence, such as Chancellor Kent and Mr. Starkie, do not mention that as a characteristic by which the nature of an infant’s contract is to be decided; and Bingham (9, 10, and note 2, to page 10,) expressly repudiates it. See also Marshall’s Reports, 12. Indeed, nothing could bé more diametrically °PP0Sed to common sense; nothing could savour more of a mere dogma; and nothing could have a smaller tendency to support the rights of infants against the mature cunning and interested efforts of experienced adults, than such a principle.
    Another criterion of an infant’s contract being .only voidable, is said to be, its appearing to be for the benefit of the infant.
    This criterion is not altogether as preposterous as the other, but it does not come much short of it. By Bing-ham, (pages 11, 12,) an author of some celebrity,-whose researches into this subject are quite extensive, and who has brought together most of the modern cases relating to it, it is rejected. This distinctive mark is recognized, however, by others, whose opinions are entitled to very great respect. 2 Kent’s Com. 193: 1 Mason, 82.
    In the first place, it is too vague for a criterion. That which is received as a test, certainly ought not itself to require to be tested. That the contract should appear to be for the infant’s benefit! How fallacious are appearances! Who is to determine whether these appearances exist or not, in point of fact, the court or the jury? If the court, is it to be limited by what appears upon the face of the contract, or may it resort to extrinsic evidence? If the jury, are they to be restricted in the same manner, or what latitude is to be permitted them? Undoubtedly, if an infant’s contract is to be governed by any such criterion, the contract itself must afford the criterion; otherwise, it is not the contract which gives it its binding force, but considerations aliunde. Furthermore, if what appears upon the face of the contract is not exclusively to be looked to, then there could be no general rule for determining its character, for the evidence extrinsic of the contract would have to be submitted to the jury, whose verdicts would be as various as the circumstances appertaining to each particular case, from which it would be impossible to extract any principle, as a guide m iuture cases.
    If then, the contract’s appearing to be for the benefit of the infant, is to be taken as a criterion that it is not absolutely void, the legal construction of the contract must always be referred to the court, and that construction must depend either upon the literal expressions contained in the contract, or upon the beneficial or injurious tendency of such contracts in general, towards the rights and interests of infants.
    The defendant’s counsel contend,, that wherever value received, or a consideration of any kind, is acknowledged upon the face of the contract, that it is to be taken to be for the infant’s benefit, and is of cour-se only voidable. Such a construction regards „ only the literal expressions used in the contract, and appears to me to be a very superficial one. It is certainly inconsistent with the tenor of those authorities which have been produced, and which hold, that a bill of exchange, bond for interest, account stated, bond for necessaries, &c. by an infant, are absolutely void. Do not these express a consideration, or to have been given for value received? And how easy would it be to overreach an infant, if this construction is sanctioned, in every case, by introducing that, or some equivalent expression, into all contracts made with infants, and thus set at nought the whole policy of the law, which intends to provide a shield for their imbecility!
    I contend, therefore, that the true meaning of what is to be found in the books, about the contract’s appearing to be for the infant’s benefit, is not merely, that a consideration, however insignificant, shall appear to have been received; but that the criterion is, the nature of the contract; the tendency of such contracts in general; their aptitude, in the abstract, to occasion benefit or injury to infants; the policy or impolicy, from their subject matter, of allowing them. This distinction will be found to be exemplified in the class of cases which _has been produced, wherein it is held that an infant s deed of lease reserving . . . . , , , , ~ rent, and.his deed ot partition, are voidable merely, but that a bill of exchange drawn by him is absolutely void. It would certainly be for his benefit, in general, that his lands should be leased, because they thereby yield him an income, if rent is reserved. But, if rent be not reserved, the nature and tendency of the contract are wholly different; and the quantum of rent is a thing so easily regulated by reference to rents in general as- a standard, that if the rent reserved should be far below that standard, it would afford such evidence of fraud practised upon the infant, as to take the case out of the operation of the principle which we are discussing, and render the deed void upon another ground. So also, in regard to an infant’s deed of partition. The inevitable tendency of such deeds is, to give to the makers of them a more full and exclusive enjoyment of their property than they had before; and if there should happen to be gross inequality in the division made by an infant, operating to his detriment, that circumstance would vacate his deed of partition, independently of his ability to make it in the first instance. But with regard to a bill of exchange, drawn by an infant, that is agreed, on all hands, to be absolutely void. And why? Such a bill of exchange might appear to be for the infant’s benefit, and very greatly for his benefit; yet, it is deemed and held for nought. Such a bill of exchange, might also be for so inconsiderable a sum, as not materially to affect the infant’s interest in any way; still, whether loss or gain is to result from it, or neither, it is a perfect dead letter. This can only be the effect of the application to instruments of that description, of some general principle, which is, their tendency to involve infants in ruin, if dealing of that kind were permitted. The general principle upon which the acts of infants are to be sanctioned or not, being thus ascertained, there is no difficulty in applying it to the case under consideration. What ought we to say of the wisdom or consistency of that system of jurisprudence, which prohibís an infant from drawing a bill of exchange for ten dollars, or from binding himself by signing a stated account, or from executing his promissory note for the most trifling sum, and for the most meritorious consideration, and renders such acts, if done, wholly ineffectual; and yet, which should tolerate his conveying away, subject only to disaffirmance after his attainment of full age, an estate in land, worth any amount, and constituting, perhaps, his whole inheritance! As to the pernicious tendency of these two descriptions of acts, in a comparative point of view, I think there can be but one opinion; to say nothing of the extent to which the defendant in this case, pushes the doctrine in reference to the efficacy of an infant’s deed for land. That is, that such a deed, at whatever age executed, is a good deed, if it purports to be founded on a consideration, and passes the fee, subject only to a divestiture-after the grantor’s arrival at years of discretion. And, in the mean time, when the grantee has accomplished his ruin, he is actuated by the powerful motive of interest, as well as a regard to his own character,- to tamper with the infant’s sense of honour or shame, at a period of life when he is peculiarly susceptible, and to operate upon public opinion, in the neighbourhood, for the purpose of detering the infant ■from asserting his rights, in order to induce an acquiesence, until it is too late, or some positive act of confirmation.
    So much for the distinction so strenuously insisted on by the defendant, and to which, no kind of importance can be attached, unless we adhere to it in a dogmatical sense. But, whenever we test it by reason, the true rule becomes manifest, which, when correctly understood, prevents any of those absurd and injurious consequences ■which would necessarily flow from the perverted rule, as-advanced by the defendant, and.vindicates the law against the charge of folly and iniquity, which would otherwise rest upon it. For the general doctrine, upon the subject of the effect of deeds made by infants, I refer to the following authorities. 3 Bacon’s Abg. a. 577: Co. Lit. 171, b. 3 book: Co. Lit. note 31 to page 171 b: Lib. 3, ch. 1: 1 Vesey, sen. 298: Preston on Conveyances, 322: 3 Burrows, 1794: 3 Atkyns, 702 : 712, 713: Leaton vs. Hardeman & M’Crory, decided by the Supreme Court, at Nashville: 1 Strange. 94: 1 Hy. Bl. 75.
    4. Be the deed from Wheaton to' East void, or voidable only, there has been no confirmation of it. I maintain that whether an infant’s deed for land is capable of being confirmed by parol or not, that nothing amounts to a confirmation, except some act done by the infant after his arrival at full age, the direct and unequivocal object and intention, and necessary tendency of which is, to confirm. I lay out of the question, acquiescence on the part of the infant, for such a length of time after the expiration of his minority, as would form a presumption of abandonment, because that, is a different principle altogether. Neither can the acquiescence that has here taken place, operate as evidence of confirmation, because this suit was brought within three years after Wheaton’s attainment of the age of twenty-one years; ánd surely there is not such inconsistency in the law, as to allow that time within which to. bring the suit, and yet make the lapse of a portion of it operate so as to defeat the suit. Such an act, or such an expression by the grantor after his majority, as was once thought sufficient, according to the course of decision. that then prevailed, to take a case out of the statute of limitations, would not amount to a confirmation. And let it be remembered that it is now held, that to revive a demand once barred, requires an express acknowledgement that the debt is still due, and an express promise to pay it. The institution of this suit, is an express act of disaffirmance, to counteract which, it is incumbent on the defendant to show an act equally unequivocal of affirmance; for, by admitting the deed to be voidable, the implication necessarily results, that it was a deed orno deed at the election of Wheaton after his minority ceased. He made that election by bringing the suit; which would consequently prevent the deed from taking effect, unless he had made a prior election, that it should be considered as his deed after his attainment of full age. To do this, what is the proof in the cause ? Why, that upon one occasion, Wheaton, when standing in • view of the lot, told a third person, in the absence of East, that he once owned that lot, and had sold it to East, and received payment for it. A fact which the deed itself showed; and which consisted perfectly with an intention which he might then have entertained at the very moment of his communication to the witness, of disaffirming the sale. That Wheaton was frequently in Nashville after he was twenty-one years old; knew that East was in possession of the lot, and was making valuable improvements on it. The deed itself had the effect, pro hae vice, of giving to East the right of possession, and of vesting the estate in him; but as he took these rights, subject to the right of disaffirmance on the part of Wheaton; if he went on to improve the lot at any time while Wheaton’s right of dis-affirmance existed; it certainly was at his own peril, unless the conclusion can be arrived at, which would be a forced one, that Wheaton was bound to disaffirm at the very first moment after his minority ceased, and that if he did not do so, he was afterwards precluded. That upon another occasion, in the Western District, Wheaton told a witness to tell East, that he did not wish to be driven to the necessity of availing himself of his privilege of minority, and that he would give him a certain amount of Western District lands for the lot; which message the witness never communicated to East until after the suit was brought. And that is attempted to be tortured by construction into a confirmation of the sale. Does not the message, in its very terms, show that Wheaton contemplated the exercise of his right of disaffirming, unless East would make the exchange; and that he was induced to offer the Western District lands as a proper equivalent for what he had received of East at the time of the execution of the deed, and to avoid the . odium usually attendant upon the reclamation of property improvidently conveyed during minority? Even If there had not been annexed to the proposition which he authorized the witness to make, the qualification that “rather than be driven to such a resort, he would give the Western District lands for the lot;” that is, if it had. been a naked proposition to exchange the lands for the lot, still nobody can believe, even with the aid of the most artificial system of logic, that Wheaton intended, by the bare submission of the proposition, not to effect the exchange, but to confirm the sale which he had made of his lot, and to prevent himself from ever acquiring it. And without any intention to confirm, and also in the absence of any act of confirmation, upon the authority of idle, loose conversations, imperfectly recollected, and extremely liable to be garbled and- misreporled; if, I say, upon such foundations as these, a man can be deprived of'his whole inheritance, these provisions of law, which are said to have been benignantly made for the protection of youth and inexperience surrounded by cupidity -and artifice, are but a piece of solemn mockery; nay, they are worse, they are detestable hypocrisy and gross delusion, calculated to inveigle the unwary into the most destructive wiles, and ought to be expunged from every wise system of legislation. Vide 2 Hawks’s N. C. Rep. 535: 2 Stark. Ev. 725, text and note 2: 10 Mass. Rep. 457: II Mass. Rep. 147: 1 Esp. Ca. 628: 1 Ld. Ray. 389: 1 Pick. 202: 9 Mass. 62, 100:4 Day. 57: 4 Conn. Rep. 376.
    5. I do not contend, that'all the deeds of infants, are void;’or that the distinction of void and voidable, as relates to some of their deeds, does not prevail. But, I do contend that it is a very idle and unmeaning distinction, so far as any benefit is practically secured by it to infants, if, where a deed merely imports a consideration, no matter what the nature of it may be, it is to be held .valid until disaffirmed, and any, the slightest circumstance, may be construed into an affirmance. Neither do I deny, but that an election by the infant, after his majority, to consider that an absolute deed, which before was subject t-o be considered otherwise by him, may be proved by parol; because in such a case, the matter to be proved is his election, which is essentially a mattef in pais. But, I do deny that a confirmation of a deed can be otherwise than by deed. 3 Co. Lit. sec. 615, ch. 9. The term voidable deed, necessarily implies a deed in esse, with all the properties of a regular deed, but subject to be avoided upon some future contingency. An infant’s deed, therefore, although voidable, has the effect of transferring the property which is the subject of it, and of vesting it in the grantee; subject, however, to the condition of defeasance by the grantor’s making an election, after his arrival at full age, no longer to consider it a deed; which condition is not expressed upon the face of the deed, but is implied in law as a personal privilege appertaining to the infant in consequence of his original disability to make the deed a full and absolute one. When, therefore, the grantor, upon the cessation of his minority, avoids the deed, he does not destroy it- ab initio, or in any manner interfere with its previous existence as a deed, or affect any act done under it as such by the grantee. His election to disaffirm it, merely operates in futuro. In like manner, when he elects to affirm the sale, such election is only a renunciation of his right to disaffirm it; it does not operate upon the construction of the deed as made, or any thing derived under it. If the .election to affirm the sale operated upon the deed, or gave to it any efficacy which it did not before possess, it would follow, inasmuch as such an affirmance can be by parol, that a conveyance less solemn than by deed would be sufficient to pass land, and that, too, in direct contravention of the acts of assembly prescribing the only mode of transferring land, and of the statute of frauds and perjuries— But when we look at the grantor’s election to affirm the sale, as something that is collateral to the deed which he had made in pursuance of the sale, and not as a constituent part of the conveyance, we steer clear of all these difficulties, and lay the only foundation for the admission of parol proof upon the subject. But at the same time, when we consider that such affirmance is to have the effect of a relinquishment by the grantor of highly important rights, which if asserted, would give him a title to land, surely, nothing less than a full intention, clearly, unequivocally and undeniably evinced, ought to draw after it consequences of such magnitude. 3 Cranch, 338: 13 John. 212, 525.
    When a deed requires confirmation, the confirmatory act is incorporated with, and becomes a constituent part of the deed itself; its operation is directly upon the defective deed; and it helps out, and makes sufficient for the purpose for which it was designed, that which before was not so.
    
      G. 8. Yerger, for defendant in error.
    Two questions are presented by this record for decision: 1st. Is a deed of bargain and sale executed by an infant, void, or only voidable; and 2d. If voidable, can it be confirmed after arrival at full age, by acts or matter in pais without a deed.
    It is conceived that at.the present day, few contracts of an infant are absolutely void, and incapable of confirmation; it is manifestly for the benefit of the infant, that they should be construed to be merely voidable; hence the courts of justice lean very strongly against declaring them absolutely void. Amongst those which are still considered void, are negotiable instruments, although executed for necessaries, (10 John. Rep. 539: 3 New Hamp. Rep. 314;) covenants to stand seized to uses in consideration of marriage or blood, (1 Saunders on Uses and Trusts, 214;) a devise of an use before the statute of uses, (lb. 65;) bonds with penalties and letters of at-
    It is a difficult task to distinguish upon what principle the void and voidable acts of an infant turn. Perkins, section 12, says, that where a deed takes effect by delivery from the hand of an infant, it is only voidable; other writers say, where there is a semblance of benefit, it is voidable, and that the receipt of money makes it a semblance of benefit, &c. Vide, 3 Burr. 1808. But be the reason what it may, I consider it as well settled, that a deed of bargain and sale executed by an infant, is only voidable.
    In the case of Zouch vs. Parsons, (3 Burrows,) a lease and release, (a conveyance deriving its effect from the statute of uses,) was declared to be only voidable. This may be considered a leading case, and which if it be the law, settles the case atthebar. Itistrue,that Mr. Preston,' and some other eminent lawyers, have denied this case to be law. But it is now considered the settled law of England, and the decision is ably supported upon principle by Mr. Bingham and Mr. Powell. Vide, Bingham on Infancy. Powel on Mort. 210, a. And it has been adopted and recognized as law in nearly all the States of the Union, particularly in this State, 2 Tennessee Rep: In Connecticut, 6 Conn. Rep. 494: In New York, 2 Kent, 193, 11 John. Rep. 539: In North Carolina, 1 Hay. Rep. 143: In South Carolina, 4 Dess. Rep. 465: In Massachusetts, 15 Mass. 220. Vide, also Thomas’ Coke, 203. . So at common law a lease is merely voidable. Bingham on Infancy, 25, 28: A feoffment also, lb. 29. And in this State a bargain and sale operates as a feoffment at common law, Act of 1715; 2 Tenn. Rep: A surrender, Bingham, 30: An exchange, Co. Litt. 51, b: A partition, Co. Litt. 171, b: Acknowledgment of fines, recoveries, &c. Bingham, 31.
    If the deed is merely voidable, all the books concur in this, that the infant has only a right of election, either to affirm or disaffirm it, when he arrives at full age. Cro. Jac. 320: 2 H. Blk. 575: 3 Burrows, 1806, 1808: 2 Strange, 939: 1 Fonblanque, 89: 2 Kent’s Com.. 193.
    Does the law then require a deed of confirmation or a positive act of ratification, to deprive the infant of his right of election; or, must the infant elect to disaffirm within a reasonable time of arriving at full age? There appears to be some apparent difference of opinion upon this point; but perhaps upon investigation, this will he found to be the true rule: “Where the act is merely voidable, and passes the interest by an executed contract, and possession is delivered, the infant will not be allowed his. lifetime, or any period short of the act of limitations, to avoid it; but in such case the .law will compel him to avoid it by bringing a suit, or perhaps by notifying the other party of his dissent or disaffirmance, within a reasonable time after his arrival at full age, or the conveyance will stand good in law; and what is or is not a reasonable time, must be determined by the circumstances of the case.” If this is not the law, consequences of the most pernicious character to society will be the result. Infants making contracts and conveying land before twenty-one, would be enabled, under the color and protection of the law, to perpetrate frauds of a character much to be deprecated. Take the case before the court as an example; at the time Wheaton conveyed to East, the latter gave full value for the lot; at the time, and some time after Wheaton arrived at age, the lot was worth very little more than he received for it. Wheaton laid by for four years; the lot in the meantime, from fortuitous circumstances, became three times as valuable as it was when sold, and then Wheaton for the first time, reverberates in the courts of justice, the cry of infancy! infancy! infancy! and now’ expects to recover it, upon the ground that he was incapable of contracting when he executed the deed. If it had fallen in price, is it to be supposed this suif would have been brought? Never. Will this court sanction a rule, which will permit a minor to lie by seven years after he is of age, (the time required for a bar of the statute of limitations, and where no possession has been taken, perhaps a much longer period,) before he shall be compelled to affirm or disaffirm the contract? If this is the law of the land, it will be very advantageous for persons just before they arrive of age, to sell their town lots or landed property; if within the seven years it has risen greatly in value, they elect to disaffirm; but if it happened to fall, they prudently affirm the contract, and pocket the purchase money. The law is not so iniquitous, and those who argue that it is, have not adverted to the obvious distinction between the executed and executory contracts of infants, that is, between contracts where no further act is to be done, where the interest has actually passed and vested, subject only to be divested by a disaffirmance, and where there is only a bare promise or agreement to perform or do some act.
    In executory contracts, if the infant does not expressly affirm or perform them, no assent can be inferred; in fact, his refusal or neglect to perform, is a continued act of dissent. But in executed contracts, no such express ratification or affirmance is necessary; his interest having passed, an express dissent is necessary to avoid it, and an assent or ratification, when made or proved, is only evidence of an election on his part not to disaffirm the contract, which election when- once made, is irrevocable. It follows, then, as a necessary consequence, that in executed contracts, he has an election to disaffirm the contract, and thereby revest the interest in himself; and the law is well settled that in all cases of election, where no time is positively fixed by the parties, the election must be shown to have been made in a reasonable time. 3 Comyn’s Digest, (Am. Ed.) 539: Doe vs. Smith, 2 Term Rep. 437: Drayton vs. Drayton, 1 Dessauseure-’s Ch. Rep. 125. And this rule has been expressly extended to the right of infants to disaffirm their contracts when they arrive at full age. They must in executed contracts dissent within a reasonable time after arrival at 21, or their right to disaffirm will be gone forever. 2 Vernon’s Ch. Rep. 224: 4 Common Law Rep. 11: 2 Kent’s Com. 194-5: Cro. James, 320.
    The principle is the same in relation to the purchase of a feme covert; such purchase is not void as to the Husband, but merely voidable; he may therefore disagree, to it, and the purchase will be avoided; but if he neither agrees or disagrees, the purchase is good, for his conduct shall be esteemed a tacit assent, &c. • 1 Bacon’s Abr. 499.
    If this argument be correct, then the judgment of the circuit court must be affirmed, because Wheaton did not dissent or bring suit until four years after he was of age, until in fact, he found out that the property had greatly increased in value.
    3. But suppose evidence of an express ratification or confirmation is necessary, must it be by deed?
    It is strenuously contended that it is; that the confirmation must be by an instrument equally solemn as the first one, and Coke Litt. sec. 515, is cited and relied upon. However true this may be in relation to execu-tory contracts or promises, it cannot, as I conceive, be supported as to deeds, or other executed contracts.
    The deed of confirmation referred to in Littleton, sec. 515, can have no application to the present point. A deed of confirmation, it is true, is necessary where an estate as contradistinguished from an instrument or deed, is to be confirmed.
    Sir Edward Coke defines a confirmation to be a conveyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased. 1 Inst. 295. As where a tenant for life leases for forty years, if the tenant die before the expiration of the forty years, the remainderman or reversioner may avoid the estate of the lessee for the balance of the term. But if before the death of the tenant for life, be confirms the estate of his lessee, the estate is no longer voidable but sure, (Littleton, sec. 516:) or where A disseized B, and thereby gained an estate by wrong, and B confirms his estate, its effect is to turn the wrongful estate of A into a rightful one. In all cases where a technical confirmation or deed is necessary, the estate confirmed, emanated from a third person, and the confirmation operated as a conveyance or transfer of the right or estate of the confirmer. In these cases no estate having previously passed out of him, but the estate which he could avoid being wholly created by a third person, a deed or instrument, conveying the right or estate left in him, is absolutely necessary, because the right has not previously passed out of him. Therefore, a deed of confirmation is only necessary, when the estate 01* right of the confirmer did not pass by the first deed, but an estate was created by that deed, which was voidable as to him. But the case is wholly different where the deed of the confirmer himself, and not the estate, is to be confirmed. In this case, if the deed is only voidable, the estate or interest actually is passed and vested in the vendee; it requires no additional deed to pass or vest the estate, for that has already passed; it only in such case requires the subsequent assent of the infant, to prevent the estate vested by the deed from being reinvested in himself.
    Could not the bargainee of an infant maintain ejectment against a stranger? Would it be' a good defence for the stranger to plead that the bargainee was an infant? Can he avoid it for the infant? .Surely he cannot, unless the deed is absolutely void, and not merely voidable; this proves that the estate or interest has vested, or the plaintiff in ejectment could not recover.
    These principles are supported by the venerable authority cited and relied upon by the counsel on the other side. “If an infant makes an exchange of land, and remains in possession of the land which he received in exchange for his after arrival at full age, it Js a confirmation of the exchange?” 2 Thomas’ Colee, 525. What is an exchanger “A mutual grant ol equal interests, the one in consideration of the other.” 2 Blk. Com. 323. When the exchange is of freehold lands, and not of matters which merely lie in grant, it must he by deed. 2 Thomas’ Coke, 519, note a.
    So in cases of voluntary partitions by tenants in com'" mon or joint tenants, which must be by deed, (though as to coparceners no deed is necessary.) 2 Blk. Com. 324. If an infant has executed a deed of partition, and after arrival' at age holds over or occupies his part, this is a confirmation. Co. Lilt. 171, b. In these cases, if the infant’s interest did not pass and vest by his deed, the mere act of occupation and receipt of rents and profits, would surely not pass his right, because if it had not already passed, a deed of confirmation would be required to vest it. But in these cases his interest or right having vested by the execution of the deed whilst an infant, subject to the condition of being divested by him when of age, in order to debar him of this power of reinvesting it, his assent after full age, to the interest he conveyed whilst an infant, is only necessary. The continuing in possession, and receipt of the profits, was considered such an act as evidenced his assent, and consequently he could not avoid it.
    In the case of an executed contract, almost any act, or circumstance, however slight,, is sufficient to infer his assent or ratification. 1 Pickering’s Rep. 224: 3 Bacon, 603; 2 Kent’s Com. 194* 15 Mass. 220: 1 Haywood’s Rep. 143: 4 Dessauseure, 465. These authorities also show that no deed of confirmation is necessary.
    The case in 1 Haywood, is directly in point, and has always been considered the law in this State. In that case, an infant conveyed his land, and after 21, said “I will never take advantage of my infancy; it is my wish that you keep the land.” This was held a confirmation.
    
      If then, as I have clearly shown, the deed is merely voidable, and no deed of confirmation is necessary, the assent or confirmation of Wheaton was clearly proved in this case. He said, shortly after 21, that he was well satisfied with his trade. He proposed to East to give him Western District lands for the lot. He saw East improving the lot, erecting buildings, &c. and made no claim or right to the property. From these positive declarations' and acts, the jury inferred, and very properly, his assent to the contract, made by him whilst a minor. They were the judges of this fact., and found it in favor of East, and this court will not reverse their opinion, unless the preponderance of testimony is very great against the finding.
   Green, J.

delivered the opinion of the court.

The importance of this case, both as it regards the amount of property involved, and as it regards the principles which may be adopted in its decision, has induced the court to bestow upon it the most earnest consideration. Whether the deed of an infant should be considered void, or'only voidable, is a question, notwith-hstanding all the learned discussion by which it has been attempted to elucidate it, far from being free from difficulty.

All the books agree that some contracts of an infant are void, and that others are only voidable; but no general rule seems to be settled by which we may be able to determine with certainty, to what particular class any given contract belongs. Bingham on Infancy, ch. 2, p. 33-4: Preston on Property, vol. 2, p. 249: 2 Kent’s Com. 191-2-3.

To say that all the contracts of infants are absolutely-^ void, except those for necessaries, would be to set our- j selves in opposition to the whole ■ current of authority ( upon this subject. Some of the contracts of infants must ) therefore be regarded as only voidable, at their election when they may arrive at full age. The mischiefs of which it is insisted this doctrine will be productive, are more imaginary than real. The force of that public opinion which it is said will prevent an infant from disaf-firming a contract after he arrives at full age, which was made during infancy, would equally act upon him to induce its confirmation, were it held to be absolutely void. In neither case could the decision of the court prevent infants from making contracts, and the danger to them would not'be diminished by adopting the principle contended for by the plaintiff’s counsel, while on the other hand the injury to be inflicted upon the community might be of the most serious character. In a community like ours, there are often no means for acquiring a knowledge of the exact age of many young men. So various and unequal are their appearances, that many of twenty-two years of age might be taken for only eighteen; while others of eighteen, would be supposed to be twenty-two. In the uncertainty their appearance would produce, and the want of other means of information, the community must refrain altogether from making contracts with young men, or run the risk, at any distance of time, of being ruined by proof, that the young man with whom the contract was made, wanted a few months of attaining his age of twenty-one. Such a result would make his infancy truly a shield to protect himself, but emphatically a sword to destroy others.

The doctrine, that most acts of an infant are voidable only, at his election after he arrives at age, is a sufficient protection for him, and in many instances may conduce greatly to his benefit. If voidable only, he may elect to affirm or disaffirm, while the other party has no such election, Thus he may take the benefit of a good contract, and disaffirm one which may be injurious. Therefore, , says Chancellor Kent, (2 Com, 193,) “the tendency of , the modem decisions is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should be deemed voidable only, and subject to their election when they become of age, either to affirm or disallow them.” Hence, ever since the case of Zouch vs. Parsons, (3 Burr. 1794,) it has been held, that the deed of an infant is voidable only.

We do not perceive that any general rule, as to contracts which are void and voidable, can be stated with more precision than is done by' Lord Ch. J. Eyre in Keane vs. Boycott, (2 H. Black. 511,) and quoted with approbation by Judge Story, (1 Mason’s Rep. 82,) and by Chancellor Kent, (2 Com. 193,) which is this, “that when the court can pronounce the contract to be to the infant’s prejudice, it is void, and when to his benefit as for necessaries, it is good; and when the contract is of an uncertain nature, as to benefit or prejudice, it is voidable only, at the election of the infant.” Thus, the contract of an infant as security for another, the court can see must be to his prejudice, for he can derive no benefit from it, therefore it is void; but a contract for necessaries is plainly for his benefit, and therefore it is good, and binding upon him. Of those contracts which may or may not be for his benefit, as they may have been judicious or injudicious, according to the facts, the court could not pronounce with certainty, and therefore they are voidable only, at his election. Of this class, is the case before the court. The plaintiff received a valuable consideration, and therefore it might have been for his benefit; but whether an adequate one or not, the court could not pronounce, upon the statement of the contract, and therefore it might be to his prejudice. In this view of the case, we think the contract was only voidable; that the deed passed the interest to the defendant, subject to be divested by the disaffirmance of the plaintiff; but that as against all others, the estate vested in the defendant.

The next question is, what act is necessary in order to affirm a voidable contract.

A (Jeecj cannot be necessary to confirm that which was executed during infancy, because that deed passed the interest in the estate, and being only voidable at the election of the infant, should he, or his heirs, fail to disaffirm it, a good title will be vested, and no other person can call it into question on account of the infancy of the grantor at the time it was executed. See 2 Kent’s Com. 194, and authorities there cited. Any thing therefore, from which his assent, after he arrives at age, may be fairly inferred, will be sufficient to affirm the deed made during infancy, and prevent him from after-wards electing to disaffirm it.

In the case before us, such inference is fairly deducible from the conduct of the plaintiff after he arrived at full age. He wanted only a few months of attaining the age of twenty-one years when he executed the deed. A full price was paid him in money, at the time he made the deed. He was often in the neighborhood of the lot sold, after he arrived at age, and saw the defendant making large expenditures in the erection of valuable improvements, and yet he is heard to say nothing in disaffir-mance of the contract for about four years. The circumstances were such as not to excuse this long silence. But in addition to the absence of any act of disaffirmance, he, on several occasions, said he had sold the lot, had •been honorably paid for it, and was satisfied. He also authorized a proposition for its purchase to be made to the defendant. ■ These circumstances fully warranted the jury in coming to the conclusion that he had affirmed the •contract, and precluded him, after all this, from setting up his infancy to avoid it.

Let the judgment be affirmed.

Judgment affirmed.  