The following case agreed was made out by the counsel for the respective parties and signed by them. The lessor for the plaintiff showed first a deed from Gilbert W. McKay to himself for the land in controversy; next a deed from King, sheriff of Robeson, to Sherrod F. Leggett, upon a judgment and execution against John A. Rowland and Gilbert W. McKay for the same land, the said McKay being the same who first sold to the lessor of the plaintiff. Plaintiff then proved that Robeson Leggett went into possession as the tenant of (426) Sherrod F. Leggett, and was in possession when the declaration was served on him. The sheriff's deed is dated 7 February, 1854, reciting a judgment and execution from the court of pleas and quarter *Page 325 sessions of New Hanover county against John A. Rowland and the said Gilbert W. McKay. The deed from the said McKay to the plaintiff's lessor for the same land is dated 31 August, 1850. The defendant then put in evidence a deed from McCormic, the lessor of the plaintiff, to Gilbert W. McKay for the same land, bearing date 15 April, 1852. The lessor of the plaintiff replied to this by showing that he was under age at the time this deed to McKay was made, also at the time of bringing his suit, and the defendant offered evidence further that, in December after the suit had been brought, McKay, the bargainee, made a payment on account of the land which the lessor accepted (admitted then to be of full age).
Upon these facts the court directed the jury to find the defendant guilty, which was done, and from a judgment according to the verdict the defendant appealed to this Court. The statement of the case made up and signed by the counsel for the parties is not as clear as it should be, but from it and the admissions on the argument these points are presented:
1. Can an infant who has executed a deed for land make void the deed by any act while he is under age? For instance, by bringing an action of ejectment, before he arrives at age, against the bargainee?
This Court considers that the law is settled. While under age he cannot affirm or disaffirm, confirm or repudiate any act or deed, for the obvious reason that he is supposed to have the same want of discretion on account of which his first act or deed is voidable. (427)
2. If an infant sells and makes a deed for a tract of land and before coming of age commences an action of ejectment against the vendee, and after he arrives at age, pending the action of ejectment, receives the purchase money from the vendee, does the fact of receiving the purchase money confirm the deed, and, if so, can such confirmation be taken advantage of by the defendant without a plea since the last continuance?
We consider it settled that the deed of an infant is not void, but is voidable by him after he arrives at age; that, in order to avoid the deed, mere words are not sufficient, but there must be some deliberate act done by which he takes benefit under the deed or expressly rcognizes [recognizes] its validity, e. g., if he takes a deed from the vendee for a part of the land which he had before conveyed or if he receives the whole or a part of the purchase money due to him by force and in pursuance of the contract under which the deed was executed. See Hoyle v. Stowe, 19 N.C. 320; *Page 326 Murray v. Shanklin, 20 N.C. 431; Armfield v. Tate, 29 N.C. 258;Benton v. Sanders, 44 N.C. 360.
In regard to the question whether this act of confirmation can be given in evidence under the general issue or must be pleaded as a plea since the last continuance, the distinction is this: When matter occurs pending the suit which does not affect the title, but merely affords ground for an objection to the further prosecution of the suit as it is then constituted, such matter must be pleaded or be in some other mode specially brought to the notice of the court, as when a party dies or marries or the plaintiff takes possession of the thing sued for. But where the matter affects the title it may be given in evidence under the general issue; indeed, in the action of ejectment the pleadings are so much at large that an estoppel may be taken advantage of under the general issue, notwithstanding the general rule that estoppels must be pleaded specially. In our case the act of receiving the purchase money affected the title, for by it the deed was confirmed, and the confirmation (428) related back so as to give effect to the deed from the time of its execution. See the cases cited above.
Upon these facts, this Court is of opinion that the judge below erred in directing the jury to find the defendant guilty.
PER CURIAM. Venire de novo.
Cited: Ward v. Anderson, 111 N.C. 117; Cox v. McGowan, 116 N.C. 132;Weeks v. Wilkins, 134 N.C. 521.