¶1OPINION OP THE COURT.
MECHEM, District Judge —¶21 The question presented is: Will a surety on a note sued on by the original payee, given by an infant for the purchase price of real estate conveyed by the payee of the note to the infant, be discharged from liability, where the principal on coming of age, disaffirms the deed conveying the real estate and tenders back a deed to the payee? Tf the late infant on arriving at his majority 'may disaffirm the deed and if such disaffirmance renders it void ab initio, propositions not questioned, and if the deed tendered vests the payee in all that he ever parted with, in consideration of the note, which it does as far as the record in this case discloses, then the consideration of the note is wiped out or extinguished. The defense is failure of consideration, which is good as between the original parties to the note. Sec. 28, chapter 83, laws 1907. We are of the opinion that the question stated must be answered in the affirmative. Baker v. Kennett, 54 Mo. 82; Keokuk County State Bank v. Hall, 106 Iowa 540, 76 N. W. 832; Kyger v. Sipe, 89 Va. 507, 16 S. E. 627.
¶3It is true that the plea of infancy is a personal defense and as such cannot avail the surety, but this only applies to the contract itself upon which the surety is bound, in this case, the note, and does not extend to the consideration for the note. Where the principal is discharged because of incapacity, to contract the surety stands in the position of principal promisor. His promise in this case was based upon a consideration moving to his principal, which has failed, through no fault of his. His obligation cannot be extended bejnnd the note. He cannot be held to have promised that W. O. Taylor, on attaining his majority would not avoid the deed. He did not guarantee both the note and the consideration for the note.
¶4The cases cited by counsel for appellee support the rule that a discharge of the principal by reason of infancy does not discharge the surety, but in all the cases so cited the contract was supported by valuable consideration.
¶52 Appellee states that by his amended reply to .the second amended answer of W. O. Taylor, he alleges that he refuses to take back the property or a deed for the same. The pleading mentioned is not in the record, but as this cause must be reversed we will treat the point as raised. It may be disposed of very easily upon principle. Where an infant receives anything by reason of a contract, which he disaffirms upon coming of age, he must restore what he received under the contract in order to make the disaffirmance effective. He cannot avoid the ■contract and still retain the fruits of it. 22 Cyc. 614. Now if the right of the infant to disaffirm is absolute, of which there can be no -doubt, and in order to exercise that right he must restore the thing received, if he still has it, then the duty to restore becomes a right to restore, otherwise the right to disaffirm would depend upon the will of the opposite party.
¶63 The allegation of tender is attacked because it is not shown how the tender was made. This defect was apparent on the face of the answer and should have been taken advantage of by a demurrer, distinctly specifying this ground of objection. Sub-section 36, sec. 2685, C. L. 1897. For aught that the record shows the Court below ruled on the effect of a tender and not whether a tender was well pleaded.
¶7The judgment of the lower Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
