SANGER et al. v. HIBBARD et al., 104 F. 455

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. The argument in this case has taken somewhat of a wide range, but the case is in a narrow compass. The goods which Sanger purchased from the plaintiffs and others while still a minor were seized and sold on the attachment sued out against him, and the proceeds of that sale were received by Shelley, one of his creditors, so that while he was yet a minor all the goods he had purchased during his minority, and the proceeds thereof, had passed out of his possession and beyond his control.

On this state of facts, properly pleaded, was it error to render judgment in an action at law against him for the goods purchased while a minor? This question must be answered in the affirmative. The rule is well settled that an infant has an absolute right to disaffirm and avoid his contract for the purchase of property with which to enter into trade. He can repudiate his contract to pay for property purchased for such a purpose, and the seller has no redress, unless the property purchased remains in the possession and control of the infant.

In such case the infant's repudiation of his contract revests the title to the property sold in the vendor, who may recover it in a proper action for that purpose. But this suit is upon the contract for the purchase of the goods, and there is no claim that the property, or any part of it, or the proceeds thereof, are in the possession or control of the defendant. The attachment deprived him of the possession of the goods, and, under the agreement which resulted in the execution of a bond to dissolve the attachment, the proceeds of the sale of the goods went to one of his creditors while he was still a minor.

It is not claimed that he ratified the contract or did any act to estop him from setting up this defense after he had attained his majority, and the claim that the execution of the bond to dissolve the attachment during his infancy operated either as an af-firmance of the contract or as an estoppel is untenable. The bond was nothing but a contract, and no more binding upon him than the contract for the purchase of the goods in the first instance.

The execution of this bond did not operate either to affirm the original contract, or to estop him from setting up the plea of infancy in bar of a recovery upon it, because he was still a minor when the bond was executed. A minor can neither make nor affirm a contract of this character during his infancy. The rule which precludes him from making a contract precludes him from ratifying it.

He cannot effectually affirm a contract made during his infancy until he. attains his majority. “The question," says the supreme court, “is whether acts and declarations of an infant during infancy can es-top him from asserting the invalidity of Ms deed after he has attained his majority. In regard to this there can be no doubt, founded either upon reason or authority. Without spending time to look at the reason, the authorities are all one way. An estoppel in pais is not applicable to infants, and a fraudulent representation of capacity cannot be an equivalent for actual capacity. Brown v.

McCune, 5 Sandf. 224; Keen v. Coleman, 39 Pa. St. 299. A conveyance by an infant is an assertion of his right to convey. A contemporaneous declaration of his right or of his age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented or contracted. But he can no more do that effectively than he can make the contract alleged to be confirmed.” Sims v. Everhardt, 102 U. S. 300, 313, 26 L. Ed. 87.

The rules of law which we have stated, and which are the only ones applicable to the facts of this case, and decisive of it, are supported by all the authorities. Corey v. Burton, 32 Mich. 30; Whart. Cont. § 56; Badger v. Phinney, 15 Mass. 359; Chandler v. Simmons, 97 Mass. 508; Carr v. Clough, 26 N. H. 280; Railway Co. v. Higgins, 44 Ark. 296; Ruchizky v. De Haven, 97 Pa. St. 202; Mustard v. Wohlford’s Heirs, 15 Grat. 329; Mortgage Co. v. Dykes, 111 Ala. 178, 18 South. 292; Brantley v. Wolf, 60 Miss. 420; Gibson v. Soper, 6 Gray, 279; Craig v. Van Bebber, 100 Mo. 584, 13 S. W. 906.

The judgment of the United States court of appeals for the Indian Territory, and the judgment of the United States court in the Indian Territory, Northern district (53 S. W. 330), are reversed, and the cause is remanded to the latter court, with instructions to grant a new trial, and to proceed therein not inconsistently with this opinion.