
    
      Robert W. Norris vs. Phillip Wait.
    
    If the property of an infant be sold by another person, and the infant, knowing of the sale, neglect to state his title to the purchaser, he may, notwithstanding such neglect, sue for, and recover, the property from the purchaser ; for the law presumes an infant to be incapable of understanding or protecting his rights.
    Acts done by the infant, after arriving at full age, will not raise an implied affirmation of such a sale, unless it be made clearly to appear that he has received an equivalent, either in money or property, for the property sold.
    
      Before Frost, J. at Laurens, Fall Term, 1845.
    Action of trover for a negro woman named Caroline. This slave, with five others, was claimed by the plaintiff, under a parol gift from his grandfather, Robert Robertson, made to him in 1825, when he was an infant. The slaves were infants when they were given to the plaintiff, and were taken into the possession of Henson Norris, his father, soon after the gift, and remained in his possession for many years, and until he sold several of them. In support of the plaintiff’s title to Caroline, the record and decree, in a suit in chancery, were produced in evidence. The complainant in the suit was the executor of Robert Robertson, and, with others, Henson Norris was made a defendant. The bill sought to recover from Henson Norris the six negroes which he claimed to hold as the property of the plaintiff under the parol gift from his grandfather. The decree was in favor of the claim of the plaintiff.
    It was proved that Henson Norris had sold several of the slaves given to the plaintiff, during his minority, and the negro in dispute to the defendant, in 1839 or 1840. Henson Norris being indebted to insolvency, with judgments and executions to a large amount against him unsatisfied, in February, 1843, carried seventeen of his slaves to the State of Georgia. Immediately after he had carried them, he made a bill of sale of them to Reuben Robertson, his brother-in-law, and Alexander Norris and the plaintiff, his sons. They were informed of the bill of sale, and in February, executed a power of attorney to A. J. Anderson, to proceed to Georgia and take charge and possession of the slaves. A. J. Anderson accordingly did proceed to Georgia, as the agent of the said parties, and got possession of the negroes, and hired them out for two or three months. They were seized under suits in attachment by certain creditors residing in South Carolina. The claim of the plaintiff, under the bill of sale, Anderson, the agent, was advised by counsel was void by the law of Georgia, he being a colored person. Eight of the negroes were sold for sixteen hundred dollars, and part of the proceeds applied in satisfaction of the attachment suits. The rest were brought back to South Carolina by the creditors and sold by the sheriff, under the executions against Henson Norris. The consideration, stated by Henson Norris, for the bill of sale, was a debt of $1800, due to Reuben Robertson ; a debt of $900 due to Alexander Norris, and a debt of $700, due to the plaintiff. He said the debt due by him to the plaintiff, for the sale of Caroline, was not included in the consideration. Mr. Jones testified that he had drawn the power of attorney from Robertson and the two Norris’s to A. J. Anderson, and that according to his recollection, the debts due to the several parties by Henson Norris, which were said to be the consideration of the bill of sale, were therein recited ; and that the debt due to the plaintiff, on account of the sale of a slave to McCullough by Norris, was the only debt recited as due to the plaintiff, which Anderson was empowered to prosecute and receive. The bill of sale and power of attorney were not produced in evidence. Henson Norris testified that the plaintiff was not of age until May, 1843. It was proved that since 1843, when his father went to Georgia with the negroes, the plaintiff had resided with A. J. Anderson. For some period before that time he lived with his father and with the said Anderson, though the greater part of the time with his father. ,
    The presiding Judge instructed the jury that the plaintiff had proved a title to the negro Caroline; and that the sale by Henson Norris to the defendant, the plaintiff being then a minor, was void ; but that though the sale was void at the time it was made, yet it was competent of the plaintiff, when of age, to confirm it. It was submitted to them to determine, on the proof, whether the plaintiff was of age in February, 1843 ; and if he were of age, whether he did accept the bill of sale of the seventeen negroes, made to him and the others by H. Norris, in Georgia; and lastly, whether the debt due by Henson Norris, on account of the sale of Caroline to the defendant, was included in the consideration of that bill of sale: and they were instructed that if the plaintiff was then of age, and did accept the bill of sale, and the price of Caroline was included in the consideration, the acceptance of the bill of sale was a confirmation of the sale by H. Norris to the defendant, though the bill of sale was void by the laws of Georgia, and the plaintiff did not receive any satisfaction of the debt intended to be secured by it. In considering whether the plaintiff had accepted the bill of sale, the attention of the jury was directed to the execution of the power of attorney, and the agency of Anderson and his taking possession of the negroes, and hiring them for the plaintiff and the other parties. In deciding whether the sale of Caroline was included in the Georgia bill of sale, the attention of the jury was directed to the disproportion between the alleged consideration for the bill of sale and the value of seventeen negroes, of whom fifteen were grown ; to the proof of the consideration as resting altogether on the testimony of Henson Norris ; to the apparent intention of Henson Norris, in running the negroes out of the State, to secure them to his children against his creditors; and the presumption which might arise, from the whole transaction, that it was the intention of Henson Norris to provide for the payment of all that he owed his children, in transferring to them all the property he had rescued from his creditors.
    It was contended for the defence, that the sale, by the defendant, was binding on the plaintiff, on the ground of a fraudulent concealment of his title. On this point the jury were instructed that an infant was liable for torts, whether of force or fraud; and that an infant would be liable if, by any act of misrepresentation or deceit, he committed, or aided in the practice of, a fraud; or if he were guilty of such gross negligence as would afford proof of an actual fraudulent intent. That negligence was not, in law, generally imputed to an infant; and that all the circumstances of the sale to the defendant seemed to exempt the plaintiff from any charge of participating in the fraud • practised by Henson Norris on the defendant in the sale of Caroline.
    The jury found a verdict for the defendant.
    The plaintiff appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.
    Jones, for the motion.
    
      Sullivan, contra.
   Curia, per O’Neall, J.

That an infant, by neglecting to state his title to a purchaser of his property from another, would thereby prejudice his right, is a proposition which cannot be entertained at law ; for the law presumes an infant to be incapable of either understanding or protecting his rights, and, therefore, generally shields him from injury, on account of every thing done during infancy. It is true if an infant be guilty of a fraud, and he be proceeded against in form ex delicto, he will be answerable; as in the case of Word ads. Vance, 1 N. & McC. 197, where an infant was held to be liable for a deceit in the exchange of horses ; but beyond this I am not prepared to go.

The great question in this case is, whether the plaintiff has done any act, or received any valuable consideration, after he attained to full age, which can be regarded as an affirmation, on his part, of the sale of Caroline by his father to the defendant.

I assume that the plaintiff was of age in February, 1848, for that is the earliest period, on the proof, that he could have attained to maturity ; and to that period the judge below directed the inquiry of the jury, and their finding must be regarded as fixing it as the time when the plaintiff attained to full age.

After that time, the father, Henson Norris, who had carried seventeen of his negroes to Georgia, conveyed them to Reuben Robertson, Alexander Norris and the plaintiff. For what purpose was that conveyance made ? The proof answers — to pay specified debts to Reuben Robertson, Alexander Norris, and $700 due the plaintiff for a negro man sold by the grantor, Henson Norris, to McCullough. When these facts are thus stated, there can be no pretence to say that that conveyance was satisfaction for Caroline, and, therefore, being accepted, was an affirmation of her previous sale by Henson Norris ! But when to this is added, what further appears from the proof, that the conveyance was of no benefit to the plaintiff, it would be carrying the doctrine of implied confirmations a great way beyond any case ever before decided. The cases of confirmation, in this State, have been of purchases made by, or for, an infant. In them it has been held, that, by the retention of property bought during infancy, after full age, the contract of purchase should be affirmed; Cheshire vs. Barrett, 4 McC. 241; Alexander vs. Heriot, Bail. Eq. 223; Eubanks vs. Peak, 2 Bail. 497. These cases proceed upon the notion, that a benefit exactly equivalent to his contract of purchase accrues to the adult by the retention of the property purchased during infancy, and hence the law implies that he affirmed by such act the previous voidable contract. So, too, I have no doubt, if one sell the property of an infant, and . after the infant attains to full age, pays him for it, that the infant could not recover it from the purchaser; and that would be on the ground that having accepted the price from him who had wrongfully sold, he thereby consented to waive the illegality of the sale and make it valid by such an unequivocal act of assent. But before he can be cut off from a clear legal title to property illegally sold, it must be made clearly to appear, that he has received, in money or property, an equivalent. The burden of shewing this rests on the defendant, and if he fails to establish it clearly,, he cannot expect to succeed. In this case it is perfectly manifest that no such proof was given; and. I think the judge below erred in submitting to the jury, that because the negroes conveyed were of greater value than the debts for which it was proved the conveyance was executed, they might conclude that the plaintiff accepted the deed in satisfaction, also, of the price of Caroline.

But the plaintiff received no benefit whatever from the conveyance. According to the proof, eight of the slaves were sold under attachments in Georgia, and the rest brought back and sold in South Carolina, on account of Henson Norris’ debts. It would be a monstrous doctrine to say, that the property of an infant, sold by his father, should be confirmed to the purchaser by an illegal conveyance, by the father, of other property to the infant after he had attained to full age. There is nothing in such a transaction from which the legal implication can arise. The infant has neither actually assented to the new arrangement, (for it does not purport to be in payment of the past sale) nor has he received benefit from it, whereby, in strict right, he can be said to have received an equivalent for his property.

The motion for a new trial is granted.

Richardson, Evans, Butler, Wardlaw and Frost, JJ. concurred.  