Sec 44

The statute just noticed sprang from the conviction, that in the long run less harm would be done by absolutely incapacitating infants, except so far as concerns the purchase of necessaries, than would be done by making their contracts simply voidable. With this is to be considered the growing sentiment in England, that it is better that young men under twenty-one should be completely excluded from business. To enable them to make voidable engagements, so it is argued with much force, is worse for them than would be entire incapacity, since bargains made by unprincipled parties with infants under such circumstances would have in them a gambling element which would be an excuse for extortionate conditions. It must not be forgotten, also, that at common law, the question is affected by local policy. An over-populated state, where it is not desirable to increase the number of persons in business life, for whose distinctive industries long apprenticeships are desirable, whose climate and traditions do not stimulate early development, naturally fixes majority at a more advanced period of life than a state whose soil and industries call for large additions of young, active, and adventurous laborers, and whose climate and traditions lead to the assumption of responsibility at an early age.3 There are states in this country, for instance, in which a modified business capacity cannot be refused to infants without producing serious business disturbance. There are also states in which it may be better, in the long run, taking the population as a whole, that persons under twenty-one should be absolutely barred from making business contracts. In some states, local policy of this class is formulated in legislation. In others, it exhibits itself in greater or less judicial relaxation of the common law rule. The matter, it should be observed, under the constitution of the United States, is within the exclusive range of state determination.-In cases of conflict of local laws, the law most favoring capacity will prevail, unless there be a positive local law to the contrary.1

At common law question one of policy.

1 Rogers v. Hurd, 4 Day, 57 ; Maples v. Wightman, 4 Conn. 376.

2 See Tyler on Inf., 2d ed., sec 50. 3 Wh. Con. of Laws, sec 113.

Sec 45

An infant's conveyance of real estate is good until avoided,2 and a lease beneficial to him may absolutely bind him after he has enjoyed the profits.3 Unless it be repudiated when he comes of age, his conveyance of real estate will be held good in all cases in which there was no fraud, and in which he had the opportunity to exercise an election.4 That an infant's lease, without reserving rent, is not absolutely void, is held, according to Mr. Pollock, by Lord Mansfield and Lord St. Leonards,5 and this is clearly the case "with a lease reserving a substantial rent, whether the best rent or not;"6 nor, so it has been held, can such a lease be well avoided by the infant, on arriving at majority, leasing the same land to another person, unless there has been re-entry by the infant or some notorious act indicative of resumption of possession.7 A purchase or exchange of real estate by an infant is not void, but only voidable at his option.8 The fact that the real estate has been intermediately conveyed to an innocent third party, does not by itself preclude the infant from avoiding the deed. Infancy is an ascertainable fact of which notice, with due diligence, may be taken, and if there be a loss, it must fall on those who have taken title carelessly.1 Avoidance of a deed of real estate after the infant has come of age, may be inferred from his conveying such real estate to a third party, in all cases in which the infant has remained in possession or in which (he not remaining in possession), by the lex rei sitœ, a party out of possession can make a good deed of real estate without re entry.2

Infant's leases and deeds of real estate are voidable, and may be avoided by subsequent deed.

1 Wh. Con. of Laws, sec 112, 114, 259.

2 Supra, sec 35 ; Co. Lit. 2 b ; Bac. Ab. Inf., i. 3 ; Irvine v. Irvine, 9 Wal. 617 ; Spencer v. Carr, 45 N. Y. 406 ; Skinner v. Maxwell, 66 N. C. 45.

3 Madden v. White, 2 T. R. 159.

4 Knotts v. Stearns, 91 U. S. 638 ; Tunison v. Chaniblin, 88 111. 378; Johnson v. Rockwell, 12 Ind. 76 ; Jenkins v. Jenkins, 12 Iowa, 195 ; Dixon v. Merritt, 21 Minn. 196.

5 Pollock on Cont., Wald's ed. 1881, p. 38, citing Zouch v. Parsons, 3 Burr. 1794; Allen v. Allen, 2 Dr. & W. 307.

6 Pollock on Cont., ut supra.

7 Slater v. Brady, 14 Ir. C. L. 61.

8 Co. Lit. 2 6, 51 b; Bac. Ab. Infancy, i. 3; Knotts v. Stearns, 91 U. S. 638.