¶1By the Court. —
Warner, J.
¶2delivering the opinion.
¶3Two grounds of error are alleged to the judgment of the Court below, in this case. First, in refusing to give to the Jury the instructions asked by the counsel for the complainant. Second, in giving to the Jury the instructions as set forth in the recoi'd before us.
¶4It appears that the defendant had purchased from the complainant’s intestate a negro, for which he paid a part of the purchase money, and executed his note for the balance. At the time this contract was executed, the defendant was an infant, who took the negro into his possession. When sued upon the note given for the balance of the purchase money for the negro, after attaining full age, he filed the plea of infancy to the action upon the note, and at the trial, sustained his plea by proof, whereupon the plaintiff in that action dismissed it.
¶5The complainant then filed his bill, setting forth the facts of the case, and prayed for a decree to have the negro sold, and out of the proceeds of such sale, to pay the defendant the amount paid by him to the complainant’s intestate, and the balance thereof to be paid to the complainant.
¶6The instructions asked by the complainant’s counsel assert the proposition, that the contract for the-'sale of the negro was disaffirmed by the defendant, by his plea of infancy to the action on *571the note, and that the title to the negro revested in the original vendor, or his legal representative, and that it was competent for a Court of Equity to decree a sale of the negro, so as to adjust the equitable interests of the respective parties to the contract, according to the facts of this particular case. The instructions requested were, in our judgment, correct in point of law, and ought to have been given.
¶7[1.] The contracts of infants are not void, but voidable at their election, when they arrive at twenty-one years of age. 2 Kent’s Com. 235. Roof vs. Stafford, 7 Cowen’s Rep. 179. By his plea of infancy to the action brought upon the note given in part payment for the negro, the defendant disaffirmed the contract for the sale of him.
¶8[2.] An obligation or other deed of an infant, shall be avoided fey plea of within age. 3 Comyn’s Dig. 550, letter c, 5. The plea of infancy was his own voluntary act, and manifested his intention to repudiate the contract, and he is therefore bound by it. The defendant will not be permitted to disaffirm the contract, when sued for the purchase money by the vendor, and when the latter seeks to recover the property, in consequence of such disaffirmance, to refuse to give it up, and then insist upon such refusal as evidence of an affirmance of the contract, as was contended by the counsel for the defendant in error. When the defendant filed his plea of infancy to the contract, he made his election to disaffirm it, andhe is bound by such election.
¶9•1ft has been insisted on the argument, that when an infant has received property by virtue of an executed contract made with an adult, that when he arrives of age and disaffirms the- contract, by his plea of infancy to the note given for the property so received, the adult cannot recover from the infant, either the purchase money for the property sold to him, or the property. Upon what legal principle this doctrine can be supported, we are unable to determine; certainly upon no past principle.
¶10[3.] The infant, in this case, derived his title to the negro by virtue of the contract made with the complainant’s intestate. When of age he disaffirms the contract, and it is cancelled for his benefit. The contract of sale being rescinded at the instance of the infant, what becomes of his title to the property derived from the vendor 1 According to legal rules and common sense, it would seem that the title to the property would revest in the vendor; *572and yet the authorities to be found in the books upon this question are not as harmonious as might be expected. We, however, adopt the rule as stated by Chancellor Kent. If the infant avoids an executed contract, when he comes of age, on the ground of infancy, he must restore the consideration which he had received. The privilege of infancy is to be used as a shield, and not as a sword. He cannot have the benefit of the contract on one side, without returning the equivalent on the other. 2 Kent’s Com. 240. The cases of Badger vs. Phinney, (15 Mass. Rep. 359,) Roberts vs. Wiggins, (1 New Hamp. Rep. 73,) and Roof vs. Stafford, (7 Cowen’s Rep. 179,) are cited in support of this doctrine. In Badger vs. Phinney, the Court inquire, after the contract has been rescinded, what is to be done then % “ Should not the plaintiff and defendant be placed in the same situation as if no such contract had been made 1 But that will not do for the defendant. His notion of rescinding is to keep all and to pay nothing on the contract.” Soliere, the defendant wishes to keep the negro, and not pay the note given for the purchase money. The rule adopted in Badger vs. Phinney, is recognized by the Supreme Court of Alabama, in Jefford’s Adm’r vs. Ringold & Co. 6 Ala. Rep. 548. See, also, 9 Metcalf’s Rep. 519. We cannot sanction the doctrine contended for, that an infant who obtains property by virtue of a contract with an adult, may, when of age, disaffirm such contract under the law made for his protection, and then refuse to restore the property thus obtained. The law, which was intended, in the language of the authorities, as a shield for the protection of the infant, would be an instrument in his hands for offensive operations. It would enable him to act aggressively upon the rights of others, instead of enabling him to guard and protect his own rights. There is no doubt,, in the .view we have taken of this case, that if no part of the purchase money for the negro had been paid to the vendor, and the note had been given for the entire amount thereof, that upon the disaffirmance of the contract by the defendant, an action of trover might have been maintained at Law by the vendor, for the recovery of the property; but part of the purchase money having been paid to the vendor by the defendant for the property, the remedy of the vendor, at Law, was inadequate and difficult. The peculiar facts of the case raised such an equity in favor of the complainant, as gave to the Court of Equity jurisdiction, for the purpose of settling the rights *573of tlie respective parties. The charge of the Court to the Jury was a denial of the complainant’s right to the relief which he prayed — to have the negro sold, and out of the proceeds thereof, to pay the defendant the-amount paid by him, and the balance to be paid to the vendor. The contract having been disaffirmed by the defendant, such a decree, in our judgment, would have properly adjusted the rights of the respective parties, according to the facts as made by the record before us, and ought to have been so adjudged.
¶11Let the judgment of the Court below be reversed, on the ground that the Court erred in not giving the instructions as requested by the complainant’s counsel, and in giving the instructions as set forth in the record.
