
    Benjamin Chambers, Ordinary, v. William Wherry.
    Columbia,
    May, 1828.
    To confirm a contract made by an infant, a simple declaration or acknowledgment after his coming of age, is not sufficient. It must be accompanied by some act which necessarily recognizes the legal existence and binding efficacy of the obligation.
    Debt on an administration bond: Plea, infancy. Administration bad been granted to the infant and one of full age: the infant did not interfere in the administration and settlement of the estate; but be renewed in his own name a lease, of which the intestate had died possessed, and obtained from all the persons interested in the estate, a penal bond, conditioned to release and relinquish to him all claim to the said lease. Many years afterwards, he again renewed the lease at his own expense, but bad the new lease made to him as administrator. Held that this was not a sufficient intermedling to charge him as administrator, and operate as a confirmation of bis administration bond.
    Tried before Mr. Justice Gantt, at York, Spring Term, 1828.
    This was an action upon an administration bond; to which the defendant pleaded, first, infancy; secondly, general performance. To the first plea, the plaintiff replied that assets had come into the defendant’s hands after he had attained full age; to the second, non-performance, and assigned a breach in the non-payment of a decree of the Ordinary, made in 1826, in favour of Hannah Campbell, (late Wherry.) Issue was taken on both the replications, and the evidence was as follows:
    Administration of the estate and effects of Samuel Wherry, deceased, had been granted to the defendant and his mother, Dorcas Wherry, in the year 1792, at which time, they both entered into the usual bonds for the faithful discharge of the duties of their office. The infancy of the defendant, at the time, was fully established; and the returns to the Ordinary’s office abundantly shewed, that the estate had been exclusively managed by Dorcas Wherry, down to the year 1800, at which time she made, in her own name, a full and final settlement with all the distribu-tees, except Hannah Wherry, now Mrs. Campbell, who was the real plaintiff in. the present action. Hannah was not of age at that time, nor did it appear whether she was afterwards paid, or not; but there was no proof that the defendant in any way interfered with the estate, except in relation to the renewal of a lease. The intestate, at the time of his death, was possessed of a long lease of certain lands from the Catawba Indians, and in the year 1793, the defendant obtained a new lease of these lands in his own name. In 1810, Hannah Wherry, and all the other persons interested in the estate, joined in a bond to the defendant in the penalty of $1000, reciting that Samuel Wherry had died possessed of the said lands, and that they -were entitled to distribution thereof, and binding themselves to release and relinquish all claim and title therein to the defendant. From that time the defendant remained in possession of the land, and in the year 1825 obtained a renewal of the lease to himself, as administrator of Samuel Wherry; but for what cause he was so designated in the lease, did not appear. The defendant was subsequently cited before the Ordinary, who made a decree against him in favour of Hannah Campbell, to the amount of $563, 90.
    His Honor, the presiding Judge, charged the jury, that the bond of the defendant was voidable only, and not void at the date of its execution, and might be confirmed by his intermed-dling with the administration after his coming of age; and that his renewing a lease, and taking possession of the demised premises, was such an intermeddling as amounted to a confirmation. He further charged, that the length of time which had elapsed between the date of the bond and the renewal of the lease, was no objection to the plaintiff’s right to recover, as performance could not be presumed, until twenty years after the youngest distributee of the estate had come of age ; and that the decree of the Ordinary was conclusive as to the amount due.
    The jury found for the plaintiff the amount of the Ordinary’s decree; and the defendant now moved for a new trial, on the ground of misdirection of the presiding Judge in each particular of his charge; and in arrest of judgment on the ground, that the bond was void in its inception, and was incapable of confirmation by any subsequent act of the defendant, after attaining his age.
    
      Mills, for the motion.
    An infant cannot bind himself by a Penal bond; it is absolutely void in its inception. Fisher v. Mowbray, 8 East, 330. Nor can an infant confirm a bond after coming of age, but by an instrument of equal solemnity. Baylis v. Dinely, 3 Maulé & Selw. 477.
    It is now perfectly well settled that the lapse of twenty years, without a demand, is of itself a presumption that a bond has been paid. Oswald v. Legh, 1 T. R. 270. 2 Atk. 144: And the rule applies to bonds for the performance of covenants, as well as to money bonds. Ordinary v. Steedman <&• Stevens, Harper, 287. It is true the presumption may be rebutted; but will an act subsequent to the period, when the presumption of performance has arisen, be sufficient for confirmation of a bond voidable in its inception ? Suppose, which is not admitted, that the bond was originally not void, but voidable, yet when the presumption of performance has arisen from lapse of time, there is nothing capable of confirmation.
    Williams, contra.
    
    If an infant takes a lease rendering rent, and after age continues in possession, this makes the lease good and unavoidable. Bingham on Infancy, 66. This is closely analogous to the present case: The defendant took a lease to him as administrator; he thus availed himself of his letters of administration, and he cannot be allowed to shake off the reciprocal obligation of his administration bond.
    As to the presumption arising from lapse of time, like all other presumptions, it may be rebutted. If the grant of administration was not too stale to enable the defendant to obtain an advantageous renewal of the lease, then the administration bond was not too old to be confirmed. The right and the obligation ought certainly to be reciprocal.
    Whether the estate was entitled to an interest in the lease,-or whether it belonged entirely to the defendant, was a question for the Ordinary. His decree might have been appealed from; but in this action it is conclusive.
   Nott, J.

delivered the opinion of the Court.

It is not necessary to the present case, to enter into a discussion of the difficult and doubtful question, as to what contracts of an infant are void, or only voidable, and may. or may not be af-affirmed, indirectly, after he attains full age. It will be sufficient for the present purpose, to lay it down as a general rule, supposing the bond in question to be voidable only, and capable of indirect confirmation, that a confirmation must consist of some act by which the party recognizes its legal existence and binding efficacy : As where one had, during infancy, given or accepted a lease, and had paid or received rent after he attained maturity. Bingham on Inf. 66. Com. Dig. Tit. Enfant, C. 6, Amer. Ed. and it would seem that a naked declaration is not a sufficient affirmation, but that it must be accompanied by some act indicative of his assent to be bound by it; as was ruled in the case of Jackson ex dem Brayton et al, v. Burchin, 14th Johns. Rep. 124.

Moore®. Mil-.^Coates, cited in Harper 8 Eq Rep. 195, and see 354 oilns'

A possession of lands, under a bond to make titles or other equitable title, has been repeatedly adjudged, and is universally regarded as a good statutory title; and under this rule, the pos- • „ , r „ , \ y session or the defendant, under the bond of 1810, up to the commencement of this action, is clearly a bar to any claim which Campbell and wife have in these lands; and I apprehend that the designation of the defendant as administrator, in the lease of 1825, could not, by any possibility, revest the title in jhem: Whatever may have been the motive for adopting it, the defendant paid the consideration for the renewal of the lease, and if he had even taken the lease in the name of another, according to well settled principles, the right enured to him by way of resulting trust, so that .the supposed intermeddling was with his own, and not the estate of the intestate.

In addition to the motion for a new trial, the defendant also moves in arrest; but that course is only admissible when it appears from the case on the record, that the plaintiff is not entitled to recover. But here, if the facts stated by the plaintiff, be assumed as true, he would be entitled to recover. It is very apparent, however, from the facts before us, that the plaintiff can never succeed in his action, and in mercy to the parties, the Court is disposed to put an end to this litigation, and, therefore, a non-suit is ordered.

Nonsuit ordered.  