The plaintiff has brought this action against his son, to recover damages for trespasses alleged to have been committed by the latter, upon land conveyed by him while an infant to his father. The trespasses alleged consist of acts done after the infant became of age, in making a formal entry upon the land for the purpose of disaffirming his conveyance thereof to the plaintiff. The court below we think properly gave judgment for the defendant. An infant cannot properly bind himself to his prejudice, but whenever the act done may be for his benefit, it will not be void, but he has an election when he comes of age to affirm or avoid it. (2 Kent Com., 233, et seq., and cases cited.) Mere acquiescence, without acts, does not amount to an affirmance. Many cases hold that the infant’s right of entry continues until barred by the statute of limitations: (Drake v. Ramsay, 8 Ohio, 151; Prout v. Miley, 28 Mich., 164; Irvine v. Irvine, 9 Wall., 627; Voorhies v. Voorhies, 24 Barb., 153.) Other cases hold that the lapse of a shorter period of time, taken in connection with other circumstances, may amount to an affirmance by way of estoppel. In this case the infant came of age on the 2d of April, 1869. On the 1st of May, 1873, he entered upon the land.. Meantime nothing more than silent acquiescence on his part in his father’s possession was shown. I can find no case which holds that such conduct alone bars a right of entry. On the contrary in Jackson v. Burchin (14 J. R., 124), eleven years, and in Jackson v. Carpenter (11 id., 539), twelve years were held insufficient for that purpose. We must therefore hold, that there was no affirmance of the deed by the infant in this case.
It is insisted on behalf of the plaintiff, however, that the infant could not disaffirm his deed without restoring the consideration which he received therefor. If such consideration or any part of it still remained in the hands of the defendant, we think that argument might deserve attention. But it appears that such consideration was received by the infant in money, and that he liad wasted the whole of it before he arrived at full age. The court below *495found those facts, and also found that he possessed no part of the said money, and no property whatever except the land conveyed to the plaintiff. The defendant is, therefore, entitled to disaffirm without restoring or offering.to restore the consideration received by him. (Mustard v. Wohlfardf's Heirs, 15 Grat., 329; Price v. Furman, 27 Vt., 268; Bartlett v. Drake, 100 Mass., 176; Walsh v. Young, 110 id., 399; Gibson v. Soper, 6 Gray, 282.) The principle on which this exception to the general rule governing the rescission of contracts rests is, that the incapacity of the infant is his shield. It holds the adult to the bargain which the infant may avoid, and affords protection to the infant by avoiding his deed, if after becoming of age he elects that it shall be avoided. If restitution should be required after the infant had squandered the consideration which he received, it is obvious that the policy of the law in respect to infants would in many eases be defeated. Such a rule would enable an adult to strip an infant of his estate without incurring any risk, and the necessary tendency of it would be to withdraw the protection of the law alluded to from infants, and transfer it to adults who had impoverished them.
The taking of the deed by the plaintiff from his son was in violation of his duty toward him. He was his son’s guardian, and, as such, had the control and management of his son’s personal estate, and of the rents and profits of his real estate, and was charged with the liabilities of a guardian in socage. (1 R. S., 718, § 5; 2 id., 153, § 20.) He was, therefore, liable for any loss suffered by him. Purchasing of his ward and paying him the consideration of the purchase were illegal acts. The loss of the money which he so paid is attributable to his own misconduct. On this ground, if on no other, restitution should not be required.
The judgment must be affirmed.
Mullin, P. J.,did not concur with Gilbert, J.,in holding that an infant is not bound to restore the purchase money of land sold by him in order to entitle him to rescind the conveyance. He, however, does concur in holding that the acts of the father in taking the deed and paying the money were a breach of duty, and the infant is not bound to repay the purchase money received by him.