On the 4th day of September, 1880, appellant, then being under the age of twenty-one yeals, joined several of his adult brothers and sisters in the execution of a power of attorney to convey land which they owned as tenants in common. In September, 1881, the attorneys in fact, acting under the power, sold and conveyed the land to appellee’s immediate vendor. Appellant attained majority June 4, 1882. This suit was brought on the 5th day of June, 1884, to recover appellant’s interest in the land and to cancel the power of attorney and deed executed thereunder as a cloud upon his title. Appellant averred that he was an infant at the time he executed the power of attorney, and that he had never received any consideration for the land.
Appellee pleaded not guilty, and specially that appellant had received the consideration paid by appellee’s vendor, and that appellant had ratified the sale. The trial was by the court, and resulted in judgment against appellant, that he take nothing.
The first assignment of error is: “The court erred in holding the power of attorney made an exhibit to plaintiff’s second amended original petition and introduced in evidence voidable instead of void, the said power of attorney having been executed by plaintiff while an infant.”
The transcript contains no conclusions of fact and law, and we are therefore not informed of the grounds upon which the court below based its judgment.
Whether the power of attorney of an infant to sell land is void or merely •voidable has not been decided in this State. There are many authorities both English and American which hold that such a power is void, while it is well settled that a deed executed by an infant is merely voidable. We confess our inability to appreciate the reason given for the distinction maintained by the authorities. The rule generally recognized by the courts of this country as the test in determining whether an act of an infant is void or merely voidable is stated to be, “that whenever the act done may be for the benefit of the infant it shall npt be considered void, but that he shall have his election when he comes of age to affirm or avoid it.” * * * “It is regarded equally to the security of the infant and more to his advantage that by considering his acts voidable we shall give him the privilege of avoiding, which also implies that of confirming them, than that by considering them void we shall lay him *348under the disability of acting at all and place him on a level with idiots and lunatics. It certainly could not be considered a great privilege to the infant for the court to have power to declare his contracts absolutely void although he might choose to ratify them.” Tyler on Inf. and Cov., 49.
“The tendency of modern decisions is in favor of the reasonableness and policy of a very liberal extension of the rule that the acts and contracts of infants should be deemed voidable only.” Kent’s Com.
The reason for the rule that holds the deed of an infant voidable is to protect the infant against his own imbecility and lack of discretion and against the craft of others.
We are unable to discover any substantial reason why the same rule should not apply to a power of attorney, as the infant would thereby be afforded ample protection against the injurious consequences of indiscrete and improvident contracts and acts done during his minority.
The question is not presented, however, so as to require its decision in ■this case, as we think there is another ground upon which the court may have based, and probably did base, its judgment.
It appears that appellant was in his twentieth year when the power of attorney was executed and lacked only a few months of majority when the deed was executed under the power. He was transacting his own business, acting for himself as an adult, and the attorney who sold the land under the power, and who was appellant’s brother, testified that •appellant approved of the sale and urged him to make it, and that appellant received his full share of the proceeds of the sale. There was no ■evidence tending to show that appellee’s vendor, who purchased under the power, knew that appellant Avas a minor or had any reason to suspect ■that he Avas. By executing the power of attorney he represented himself to be a major. He retained the purchase money, and did nothing indicating his purpose to repudiate the sale until this suit was brought, two years after he attained majority, and he does not offer to refund the purchase money.
Hnder this state of facts Ave think it immaterial whether the court held the power of attorney void or voidable. If voidable, to entitle appellant to recover he should have exercised his right of election and taken steps to avoid it Avithin a reasonable time after attaining majority, and should •also have tendered the purchase money received by him for the land. If void, it could not of course be the subject of ratification; but appellant being an infant of years of discretion at the time of performing the act he uoav seeks to repudiate, we think the court might well have held, under the facts of this case, that he was estopped from recovering the land. Bigel. on Est., 515, 516, 517; Herr, on Est., 1255, 1256, 1257; Handy, Trustee, v. Hoonan, 51 Miss., 169; Olay v. Cottrell, 18 Pa. St., 413.
Other assignments present no question requiring consideration.
*349We are of opinion that the judgment of the court below is correct and should be affirmed.
Affirmed.
Adopted March 19, 1889.
Associate Justice Henry dissenting.