¶1—It is now the settled doctrine, that the deed of an infant is not void, but voidable only.— Reeves’ Dom. Rel., p. 250, et seq.; Zouch v. Parsons, 3 Burr. 1794; Elliott v. Horn, 10 Ala. 348-54; Weaver v. Jones, 24 ib. 420.
¶2Ordinarily, it is the privilege of an infant to rescind his contract at pleasure ; and this, without regard to whether such contract was a fair one or not. This general rule is subject to certain exceptions ; but these are not involved in the case before us, unless his failure to return the purchase money, which he has received in consideration of the sale and conveyance of his land, deprives him^iPthe power of rescission.
¶3Upon this subject we have carefully looked into the books, and find much conflict of authority; and without, in this place, commenting upon them, we state as our conclusion, that while we fully subscribe to the doctrine that the infant must use his privilege as a shield to defend himself, and not as an offensive weapon to injure others, we cannot subscribe to the doctrine that he must refund the purchase money which he has received, and which there is no evidence he has had in his possession after he attained his majority, as a condition precedent to his rescinding or avoiding his conveyance at lato. We agree, that the strong current of authority is. otherwise *452in a court of equity ; but we express no opinion now as to the rule that court should proceed upon in such cases.
¶4The effect of the ruling of the primary court is, to turn this conveyance into a quasi mortgage, and to allow the infant the mere right of redeeming Ms land upon re-payment of the sum advanced to him. But, we apprehend, if the parties had expressly contracted for that relation, the infant would not have been held concluded by the mortgage. Mr. Coote, in his work on Mortgages, (p. 105,) says: “Withrespect to infants, they are of course incapable of executing a mortgage of their own property, or of lending money on mortgage; nor has the guardian, or trustee, nor even the court of chancery, any power to change the nature of the infant’s estate”, &c. —1 Pow. on Mortg. 58-9.
¶5When we come to reason upon the proposition, however, it is surrounded with difficulty; for, if the infant can raise money to the whole value of his estate by a voidable sale or mortgage, and can only avoid the conveyance after refunding, he is furnished the means, of indulging habits of dissipation and prodigality, which in many instances would doubtless result in squandering the whole of the proceeds; while the purchaser, or mortgagee, would risk nothing, the land or estate of the infant so sold or mortgaged furnishing adequate security. On the other hand, to allow the infant to retain the consideration, and yet to repudiate or disaffirm the conveyance, would tempt as well as enable him to practice frauds upon others. We think the safe rule should furnish a check both upon the infant and the party contracting with him. That rule we take to be thi^y the infant, after he arrives at age, is shown to be possessed of the consideration paid him, whether it be property, money, or dioses in action, and either disposes of. it so that ho cannot restore it, or retains it for an unreasonable length of time after attaining his majority, this amounts to an affirmance of the contract. So, likewise, if it be shown that he has the power to restore the thing that he received, he cannot be allowed to rescind, without first making restitution. But if, as in the case before us, the consideration paid was money, and there is no proof that he was possessed of the money so obtained, either actually or constructively, after he attained his majority, sq as to be able to restore it *453to the purchaser, the infant shall not be required, in a court of law, to re-pay the amount he received, as a pre-requisite to an avoidance of his deed by suit for the land. "When he succeeds in recovering the land, it works the destruction of the contract; and according to the more modern authorities, which we are disposed to consider as correct, the purchaser who has lost the land may sue for and recover the money; and especially would this action lie in a case like this, where the purchaser was induced to enter into the contract upon the false representations made by the infant, that ho was of full age, and consequently competent to contract. We would not be understood as intimating, that if the infant sought a rescission in a court of equity, he would not be required to refund the purchase money, whether he had disposed of it or not before he arrived at lawful age. See, upon this subject, Dart on Yon dors and Purchasers of Real Estate, p. 3; Chambers on Infancy, p. 412 ; 1 Eonb. Eq., b. 1, ch. 3, §4, and authorities on the briefs of counsel.
¶6Let the judgment be reversed, and the cause remanded.