Sec 74

We have already seen1 that an infant by continuing in possession after majority may be estopped from asserting an adverse claim, and that enjoyment of the fruits of a contract may estop him from contesting the contract. The doctrine of estoppel has been extended further, and it has been held that an infant who encourages a purchaser to buy an estate on a particular title may be afterwards equitably estopped from asserting an adverse right.1 But to make such estoppel effectual it should be based on an attitude which is intelligent, deliberate, and persistent. If mere transient approval by an infant of another's purchase should bar the infant's rights, the protection of infancy would be destroyed. His rights would be assigned away indirectly in the face of a rule established by the policy of the law that his direct assignment of such rights would be invalid.2 In cases of fraud, however, the better doctrine, as Mr. Bigelow well states,3 is that infants of years of discretion, as well as married women, "may be estopped to set up a claim to their property against a purchaser. Both are liable when properly sued for their torts in an action which does not seek the enforcement of a contract or demand damages for repudiating or for fraudulently inducing the plaintiff to make a contract; and in an action for a fraudulent representation of title, whereby the plaintiff has been induced to expend money for the purchase of property belonging in reality to the defendant, the measure of damages must, of course, be the sum paid. Now to prevent a circuity of action (which, indeed, is the ground of many estoppels, if not also of this very class of equitable estoppels), it is but right, on analogy, that the infant or feme should be rebutted when proceeding to regain possession."4 But an infant who has obtained credit by representinfant may be estopped.

Contract of marriage by infant is voidable, but adult is bound.

1 Conn v. Coburn, 7 N. H. 368 ; Price v. Sanders, 60 Ind. 310 ; Watson v. Cross, 2 Duv. 147.

2 Randall v. Sweet, 1 Denio, 460. See to same effect, Clarke v. Leslie, 5 Esp. 28.

3 Holt v. Clarencieux, 2 Str. 937 ; Hunt v. Peeke, 5 Cow. 475 ; Willard v. Stone, 7 Cow. 22; Hamilton v. Lomax, 26 Barb. 610 ; Leichtweiss v. Treskow, 21 Hun, 489; Rush v. Wick, 31 Oh. St. 521; Develin v. Riggsbee, 4 Ind. 464; Cannon v. Alsbury, 1 A. K. Mar. 76 ; Warwick v. Cooper, 5 Sneed, 659 ; see Tyler on Inf. 2d ed. 58.

4 lb.; Pollock on Cont. 3d Eng. ed. 56 ; Warwick v. Bruce, 2 M. & S. 205 ; Pool p. Pratt, 1 Chipm. 252 ; Cannon v. Alsbury, 1 A. K. Marsh. 76. Under the Infant's Relief Act (supra, sec 43), an infant's promise of marriage is void, and a ratification of it at full age does not bind the infant. Rowe v. Hop-wood, L. R. 4 Q. B. 1 ; Coxhead v. Mullis, 3 C. P. D. 439 ; Northcote v. Doughty, 4 C. P. D. 435 ; Ditcham v. Worrall, 5 C. P. D. 410.

5 Pollock on Cont. 3d Eng. ed. 57, citing Davidson's Conv. 3 (pt. 2), 728 ; and see Drury v. Drury, 2 Eden, 39 ; McCartee v. Teller, 2 Paige, 511.

6 Field c. Moore, 7 D. M. G. 691, 710.

7 Milner v. Harewood, 18 Ves. 259.

8 Temple v. Hawley, 1 Sandf. Ch. 153.

9 Supra, sec 60 et seq.

1 Bispham's Eq. 2d ed. sec 293 ; Bigelow on Estoppel, 447, (3d ed. 515 ;) Overton v. Banister, 3 Hare, 503; Esron v. Nicholas, 1 D. G. & S. 118; Thompson v. Simpson, 2 Jones & L. 110; Stikeman v. Dawson, 1 D. G. & S. 90; Wright v. Snowe, 2 D. G. & S. 321 ; Nelson v. Stocker, 4 D. G. & J. 458; Hall v. Timmons, 2 Rich. Eq.

120 ; Whittington v. Wright, 9 Ga. 23 ; and see Jennings v. Whitaker, 4 Monroe, 51.

2 See as to estoppel of married women, infra, sec 89.

3 Op. cit. 3d ed. 516.

4 See Story Eq. Jur. sec 380 ; Stikeman v. Dawson, 1 De G. & S. 90; Unity Ass. v. King, 3 De G. & J. 63 ; ing himself of full age is not estopped from afterwards setting up infancy.1 Nor is an infant estopped by a recital of his age in an indenture of apprenticeship.2.

Telegraph Co. v. Davenport, 97 U. S. 369 ; Com. v. Sherman, 18 Penn. St. 343 ; Merritt v. Home, 5 Oh. St. 307; Goodman v. Winter, 64 Ala. 410.

1 1 Ch. on Cont. 11th Am. ed. 208; Burley v. Russell, 10 N. H. 184; Mer-riam v. Cunningham, 11 Cush. 40;.

Stoolfoos v. Jenkins, 12 S. & R. 399 ; see Cook v. Toumbes, 36 Miss. 685.

2 Houston v. Turk, 7 Yerg. 13. As to the analogous case of estoppel of married women, see infra, sec 89. As to how far deceit in this respect may be set off, see supra, sec 52.