Holbrook v. Montgomery

Hines, J.

1. The deed of an infant is voidable at his pleasure at majority. Civil Code (1910), § 4184.

2. The infant may disaffirm the deed within a reasonable time after attaining majority; and if she fails to do so, the right of avoidance on the ground of infancy will be lost. What is a reasonable time will depend upon the facts of each case, but not be longer than seven years after the disability is removed. Nathans v. Arkwright, 66 Ga. 179; McGarrity v. Cook, 154 Ga. 311 (114 S. E. 213).

3. When the lapse of time after majority is not longer than seven years, what is a reasonable time for the disaffirmance by an infant of her deed is a question for the jury, under all the facts of the case. Brown v. Carmichael, 152 Ga. 353 (4) (110 S. E. 3).

4. The contracts of an infant under twenty-one years of age are void, except for necessaries, and then only upon proof of the party furnishing them that the parent or guardian fails or ’ refuses to supply sufficient necessaries for the infant; but if the infant receives property or other valuable consideration, and after arrival at age retains possession of such property, or enjoys the proceeds of such valuable consideration, such ratification of the contract shall bind her. Civil Code (1910), § 4233.

5. While an infant should not be allowed to avoid her contract without ■making restitution of any money or property which she has received under the contract, yet she is not required to make restitution as a condition precedent to a disaffirmance, unless at the time of disaffirmance she has the fruits of the contract in her possession. If she can not restore, she is not required to do so. Shuford v. Alexander, 74 Ga. 293; Southern Cotton Oil Co. v. Dukes, 121 Ga. 787 (4) (49 S. E. 788) ; Gonackey v. General Accident &c. Corporation, 6 Ga. App. 381 (65 S. E. 53).

6. A charge to the jury “that if this plaintiff, while she was an infant, borrowed money from the defendant and gave the deed in question as security for the money, and took the money and invested it in property which she kept for a considerable length of time after she became 21 years old and used and enjoyed the same, and did not restore to the defendant the money thus obtained' from the defendant or the proceeds thereof, this would be such a ratification of the transaction as would authorize you, if you believe these facts to be true, to find in favor of the defendant,” was erroneous for the reasons, (a) that under the rulings above enunciated it was a question for the jury to determine, under all the facts, including those referred to in this instruction, whether the plaintiff had ratified the deed which she made to the defendant; and (b) that this instruction ignored the question of the ability of the plaintiff, at the time she disaffirmed the deed, to make restoration. Judgment reversed.

No. 6289. January 13, 1928. All the Justices concur. J. P. Broolce, for plaintiff. A. B. Tollison, for defendant.