To constitute a valid contract, all parties to the agreement must enjoy full contractual capacity (a); and when the object of the contract is the sale of land, it is also necessary, in order to carry out the parties' intention, that the vendor shall have full capacity to dispose of his land and the purchaser to accept a conveyance thereof. In the present chapter therefore we will treat of personal incapacity, not only to contract with regard to land, hut also to purchase it in the legal sense of the word purchase (that is, to take it by any title other than descent (b) ), to hold it and to dispose of it. A further reason for so extending our examination of personal incapacity is that, upon the investigation of the title to any land sold, it is the duty of the purchaser's advisers to consider the capacity of all persons who have made any assurance forming part of the title, to dispose of the land in the manner expressed therein (c).

Full personal capacity a requisite of the contract.

As a rule, all natural persons (e) being of the age of twenty-one or upwards, of sound mind and in their sober senses, enjoy full capacity to purchase land, to hold it, to dispose of it and to contract with regard to it (f). Those who labour under some disability are infants, persons of unsound mind, drunken persons, married women, convicts, outlaws, alien enemies and corporations. We will examine the peculiar disabilities of each of these classes in turn; and in this examination we will use the word purchase, when printed in italics, as meaning purchase in the legal sense of the term.

Persons of full capacity.

(a) Above, pp. 1,2.

Litt. s. 12, Co. Litt. 18b. {c) Above, p. 136. (e) Including since the Naturalization Act, 1870, aliens; stat. 33 Vict. c. 14, s. 2.

(/) Co. Litt. 2, 42b; Wms. Real Prop. 288, 19th ed.

Infants are all persons under the age of twenty-one years (g). The purchase of land by an infant is voidable at his option; that is, he may disagree thereto within a reasonable time after coming of age; and so may his heir or personal representative (according to the nature of the land) within a reasonable time after his death, if he die while the purchase is voidable. But the purchase remains good until set aside (h). Disagreement to the purchase is the same thing as disclaimer of the estate (i); so that until this take place the estate conveyed is in the infant or his representatives; though on the avoidance of the purchase it will revert (without any express assurance) to the conveying party or his successors in interest (k). It is now settled, as we have seen (l) that disclaimer of any estate in land may be made by conduct, and need not, even in the case of freeholds, be evidenced by matter of record or by deed. It follows from what has been said that an infant is under no incapacity to hold land. As regards his power to dispose of his land, the general rule is that an infant's conveyance, whether of lands or goods and whether gratuitous or for value, is voidable by himself within a reasonable time after he has attained full age (m), or by his representatives after his death, if he die while the conveyance is still voidable, in the same manner as his purchase of land (n). But by the effect Infants.

Disclaimer.

Infants' conveyances.

(g) Litt. s. 259; Co. Litt. 2b, 78b, 171b.

(A) Co. Litt. 2b, 380b; Ketsey's Case, Cro. Jac. 320: 1 Prest. Abst. 327; Birkenhead, etc. By. Co. v. Pilcher, 5 Ex. 121, 123 - 128; Thurston v. Nottingham, etc. Bdg.

Socy., 1902, 1 Ch. 1, 9, 13; affd. 1903, A. C. 6.

(i) See Shep. Touch. 284, 285; 2 Prest. Abst. 226, 228; Townson v. Tickell, 3 B. & A. 31.

(k) Above, p. 667, n. (e).

(l) Above, p. 282, n. (o).

(m) An infant's conveyance by-act in pais is voidable during his minority: but an infant cannot of himself alone conclusively avoid during his infancy a voidable conveyance made by him; as before he attains full age his avoidance of his act in pais is as voidable as the act itself; see Litt. s. 258;

Co. Litt. 171b, 380b; 2 Inst. 673; Bac. Abr. Infancy and Age (i. 7. iv. 374); Slator v. Trimble, 14 Ir. Com. Law, 342. But it appears that an infant may, with the sanction of the Court, effectually elect to avoid his voidable act in pais; Stephens v. Duil-bridge, etc. Co., 1904, 2 K. B. 225.

(n) Litt. s. 259; Co. Litt. 45b, 171b, 308a, 380b; Shep. Touch. 232, 233; Bac. Abr. Infancy and Age (i. 3); 2 Black. Comm. 291, 292; Zouch v. Parsons, 3 Burr. 1794; Allen v. Allen, 2 Dru. & War. 307, 338, 346; Jessel, M. R., He D'Angibau, 15 Ch. D. 228, 233, 234; Wms. Real Prop. 67, 13th ed.; Wms. Pers. Prop. 54, 11th ed. It is submitted that the true principle of this rule is that a man's complete consent is necessary to the validity of any conveyance or contract made by him; see above, p. 667, and n. (e); and that an infant cannot give such consent until he come of age; Williams v. Moor, 11 M. & W. 256, 264, 265; Benjamin on Sale, 18, 2nd ed. On this principle, a marriage settlement made by an infant, whether of real or personal estate, and whether by way of conveyance or contract, is, as a rule, voidable at his or her option; and the marriage settlement by a female infant of her property, which would at common law vest in her husband upon her marriage, is only supported on the ground that the settlement is in effect a settlement made by him of his own property; see Trollope v. Linton, 1 S. & S. 477, 485; Simson v. Jones, 2 Russ. & My. 365, 374; Ellison v. Elwin, 13 Sim. 309; Le Vasseur v. Scratton, 14 Sim. 116; Field v. Moore, 7 De G. M. & G. 691, 711 - 714; Sony-wood v. Honywood, 20 Beav. 451; Duncan v. Dixon, 44 Ch. D. 211; Stevens v. Trevor-Garrich, 1893, 2 Ch. 307; Re Jones, 1893, 2 Ch. 461; Edwards v. Carter, 1893, A. C. 360; Re Hodson, 1894, 2 Ch. 421; Buckland v. Buckland, 1900, 2 Ch. 534; Davidson, Prec. Conv. iii. 647 sq., 3rd ed.; Wms. Pers. Prop. 487, 493, 15th ed. And consider Viditz v. O' Hayan, 1900, 2 Ch. 87, where it was held that a marriage settlement made by a female infant was not binding on her, though not repudiated by her within a reasonable time after she came of age, because she had all the time been subject to Austrian law, which did not allow her capacity to assent to the settlement. In Taylor v. Johnston, 19 Ch. D. 603, 608, Bacon, V.-C, held that a voluntary gift of money by an infant was valid and not voidable, saying, "I am not aware of any law which prevents an infant from making a donation of any chattels or personal property in his actual possession" ! It is submitted that this decision cannot possibly be supported, and that the suggestion made in the V.-C.'s dictum is entirely opposed to all the of the Infants Relief Act, 1874 (o), which makes void all contracts entered into by infants for the repayment of money lent, the mortgage by an infant, either of his lands or goods, to secure the repayment of money lent to him is absolutely void; and this applies, not only to the contract of repayment, but also to the conveyance of the estate or interest mortgaged. An infant's voidable conveyance of his land, being good until set aside, passes the legal estate therein to the alienee in the first instance: but if the infant or his representatives afterwards duly elect to avoid it, the conveyance becomes absolutely void, and he or they become immediately entitled to the land, without any reconveyance, and have the right to re-enter upon and hold the same as of the infant's old estate therein. For this reason (p). an authorities above cited, and cannot be accepted. The origin of the V.-C.'s mistaken decision appears to be a dictum of Lord Mansfield in Buckinghamshire v. Drury, 2 Eden, 60, 72, that "if an infant pays money with his own hand without a valuable consideration for it, he cannot get it back again." It has been conjectured that this passage is misprinted and that with should be read instead of without; Simpson on Infants, 75, n. (o), 2nd ed. And this seems highly probable, as it is certainly laid down by elder authorities that an infant's gift made by delivery of a chattel or money is voidable, and he may recover it, if he elect to avoid the gift; and may get back the money in an action of account; Perk. s. 12; Austen v. Jervas, Hob. 77; Manby v. Scott, 1 Mod. 124, 137; Bac. Abr. Infancy (i. 3), p. 367, 7th ed. Lord Mansfield's dictum as printed has, however, been religiously repeated; see Holmes v. Blogg, 8 Taunt. 508, 511; but it has not been followed, and it is now established that an infant may recover money paid with his own hand under a contract, from which he has derived no benefit, and which he has elected to avoid; Corpe v. Overton, 10 Bing. 252; Hamilton v. Vaughan-Sherrin, etc. Co., 1894, 3 Ch. 589. These cases appear to dispose alike of Lord Mansfield's dictum and V.-C. Bacon's decision; for if an infant can recover money actually paid by him under a contract, where there was a consideration for the payment, à fortiori he must be able to get back money paid as a free gift.