#### Tays v. Johnson.

Opinion delivered March 7, 1927.

*230 Bogle & Sharp, for appellant.

Roy D. Campbell, for appellee.

McHaney, J.,

(after stating the facts). This is substantially all the evidence on either side regarding the age of appellant, and we are convinced that the over- ■ whelming weight of the evidence shows that appellant was born on June 3, 1904, and that therefore appellant was only fourteen years of age when she signed the first deed in question, June 21, 1918, and that it is voidable at her instance, unless the circuit court had the right to and did remove her disabilities.

Section 5744 of Crawford & Moses’ Digest provides that circuit courts shall have the power to remove the disabilities of a female person who is a resident of the county, and above the age of sixteen years.

The judgment of a circuit court removing the disabilities of a female minor under the age of fourteen years is void and is open to collateral attack. Doles v. Hilton, 48 Ark. 305, 3 S. W. 193.

Referring to the decision in Doles v. Hilton, supra, this court, in Dalton v. Bradley Lumber Co., 135 Ark. 392, 205 S. W. 695, said: “The necessary effect of this decision is that no testimony could have been heard or showing made which would have authorized the court to remove the disabilities of these minors, and the action of the court in doing so was coram non judiee. The proceeding is as void as if there had been no statute on the subject, because the statute has no application to minors under the age of fourteen,”

*231The statute has, since this decision, been changed to fix the age limit of females at sixteen years, at which their disabilities may be removed.

We cannot therefore agree with appellee in stating, that the facts and circumstances shown by the testimony in this case, when viewed from any reasonable and impartial standpoint, disclose conclusively that the appellant was not less than sixteen years of age when her disabilities of minority were removed, but, on the contrary, we are convinced that the overwhelming weight of evidence was to the effect that she was only fourteen years' of age, and that the act of the circuit court in removing her disabilities at such age was “coram non judice.”

If therefore the act of the circuit court in making an order removing her disabilities, when she was only fourteen years of age was void, which we now hold, it follows- that the deed she executed on the 21st day of June, 1918, was voidable, as was also the second deed she executed on the 18th day of August, 1920, for on that date she was only sixteen years, two months and fifteen days old, and that therefore she had the right to rescind and disaffirm her deeds to said property, which she did by the bringing of this action -within the time prescribed by law, after arriving at her majority.

The next question for determination is whether appellant must restore the purchase price of $3,000 on the cancellation' of her deeds. We hold, under'the evidence in this case, she is not required to do so. This court, as was said in the ease of Arkansas Reo Motor Car Co. v. Coodlet, 163 Ark. 35, 258 S. W. 975, is firmly committed to the rule “that an infant may disaffirm his contracts, except those made in the course of his necessities, notwithstanding the other parties may be unaware of the infant’s disabilities, and-without requiring the infant to return the consideration received, except such part as may remain in specie in his hands. ”

In the case of Bickle v. Turner, 133 Ark. 536, 202 S. W. 703, this court said: “It is insisted, however, that, even if the court erred in this respect, the relief asked for by *232appellant should not be granted unless there is a restoration of the consideration. The evidence shows that the infant had spent the money received by him for the land, and if he should be required, under such circumstances, to restore the consideration as a prerequisite to avoid the contract, the protection given to an infant by the disabilities of minority would be seriously impaired and might often be destroyed. The reason that the contracts of a minor are voidable is because he is supposed to be improvident and likely waste what he has received.” Beauchamp v. Bertig, 90 Ark. 531, 119 S. W. 75, 23 L. R. A. N. S. 659; St. L. I. M. & S. R. Co. v. Higgins, 44 Ark. 239; Stull v. Harris, 51 Ark. 294, 11 S. W. 104; Fox v. Drewry, 62 Ark. 316, 35 S. W. 533; Tobin v. Spann, 85 Ark. 556, 109 S. W. 534, 16 L. R. A. N. S. 672; Barker v. Fuestal, 103 Ark. 312, 147 S. W. 45.

The only remaining question for consideration, in addition to the cancellation of the deeds executed by her while she was yet a minor, is the matter of an accounting between appellant and appellee as to the rents and profits due to her, and the taxes, repairs and improvements paid out by him. As was said by this court in Tobin v. Spann, 85 Ark. 556, 109 S. W. 534: “The contract of an infant is not void, but only voidable. He is therefore only entitled to ¡a judgment for rents from the date of his disaffirmance of the c'ontract. Tu this case the disaffirmance was-the date of the commencement of the action.”

This is likewise true in this case. Appellant is only entitled to the rents from the date of her disaffirmance of the deeds, which was the date of the commencement of this action. Brown v. Nelms, 84 Ark. 404, 112 S. W. 373; Beauchamp v. Bertig, 90 Ark. 371, 119 S. W. 75; Arkansas Reo Motor Car Company v. Goodlett, 163 Ark. 39, 258 S. W. 975.

As was also held in Tobin v. Spann, and in numerous other cases, under the betterment act, appellee is entitled to taxes, repairs and improvements, and he may offset these with rents accruing since the bringing of this suit.

*233The decree of the chancery court is therefore reversed, and the cause is remanded with directions to enter a decree canceling the deeds executed by appellant on the 21st day of June, 1918, and'upon the 18th day of August, 1920, and to determine the amount of rents accruing since the bringing of this action, and to offset same with the taxes, repairs and improvements expended by him on said property.

McHaney, J.,

(on rehearing). We adhere to our original opinion in this case, but counsel suggests that the opinion should be so modified as to more clearly state the rule governing the right of appellee to recover for repairs, taxes and improvements.

We thought, we had made it definite and certain in the original opinion, but, in order that there may.be no misunderstanding, we state it here again, that the appellant is entitled to recover rents from the date of her dis-affirmance of the deeds, which was the date of the commencement of this action; and that the appellee is entitled to recover all Of the taxes he has paid, repairs and improvements; and if the amount, of taxes, repairs and improvements is. iu excess of the rents, appellee would be entitled to a judgment against appellant for the excess. As to what is meant, by the term “repairs and improvements,” this court has said, in the case of Greer v. Fontaine, 71 Ark. 608, 77 S. W. 57, that “the measure of the value of betterments is not their actual cost, but the enhanced value they impart to the land, without reference to the.fact that they were desired by the true owner, or could not be profitably used by him.” Bouvier’s Law Dictionary. Continuing, the court said: “This definition is that given substantially in all jurisdictions having statutes like ours. Sometimes we say the improvements must be permanent, and not merely temporary. The idea seems to pertain that the improvements are such as will add to the value of the 1-and as it shall come into the occupancy and use of the true owner, for he is the person required to pay for them, although they have been made without his consent.”

*234The lower court will therefore determine the amount appellee is entitled to for taxes, repairs and improvements, and subtract from that the amount appellant is entitled to for rents,'and render judgment for appellee for the excess.

The petition for rehearing is denied.