#### LLOYD WRIGHT and CORINNA WRIGHT v. C. L. HEPLER, Administrator of James Hughes et al.

(Filed 16 November, 1927.)

Infants — Contracts—Deeds and Conveyances — Disabilities—Disaffirmance of Contracts — Benefits Retained.

After becoming of age, one will not be permitted to repudiate bis contract made wben a minor and retain its benefits, and wben be bas acquired title to lands under a deed and reconveys tbe lands to tbe seller by mortgage to secure tbe balance of tbe purchase price, both of wbicb conveyances are duly registered, and thereafter places another mortgage thereon wbicb is still outstanding, he is not in position to reconvey tbe land wbicb be still bolds to bis purchaser or bis heirs at law and dis-affirm his deed made wben a minor, and demand tbe repayment of that part of tbe purchase money be then bad theretofore paid.

Appeal by defendants from Sink, Special Judge, at May Term, 1927, of DavidsoN.

Error.

Spruill & Olive for plaintiffs.

P. V. Critcher, Phillips <& Bower and Walser & Wailser for defendants.

Adams, J.

On 1 October, 1924, J ames Hughes and bis wife executed and delivered to tbe plaintiff, Lloyd Wright, a deed in fee simple for a *543tract o£ land in Emmons Township, Davidson County, containing about forty-seven acres. At the same time Lloyd Wright and his wife executed a mortgage to James Hughes to secure a part of the purchase price. The deed and mortgage were duly recorded. When these instrument? were executed Lloyd Wright and his wife were minors. He became twenty-one on 12 March, 1925, she on 27 February, 1925; and on 3 July, 1925, they executed a mortgage on the land in question to A. F. Wright and J. D. Wright, respectively, the father and the uncle of the purchaser, to secure the sum of five hundred dollars. Thereafter on 12 February, 1926, Lloyd Wright and his wife signed a deed in fee purporting to convey to the heirs at law of James Hughes the land purchased from him and delivered it to the clerk of the Superior Court, instructing him to turn it over to the grantees upon repayment by them of $435, which had been paid as a part of the purchase price. The plaintiffs brought suit to annul the contract between James Hughes and themselves on the ground that by executing a mortgage to A. F. Wright and J. D. Wright they disaffirmed the deed the male plaintiff had received from his grantor and the mortgage they had executed to him. Analyzed, their contention amounts to this: Lloyd Wright is entitled to recover the purchase money he has paid upon reconveying the title, but the reconveyed title may be defeated by a sale under the mortgage to A. F. Wright and J. D. Wright. The result would be that the heirs of James Hughes would be deprived both of the purchase money and of the land itself. This the law will not permit. In Millsaps v. Estes, 137 N. C., 536, 546, it is said: “Neither an infant nor a married woman will be permitted to repudiate a transaction upon the ground of a want of capacity, or for other sufficient cause, and at the same time retain and enjoy any benefit derived from it.” The principle supported by an array of authorities is thus stated in 31 C. J., 1021, sec. 71(4) : “If an infant, upon his arrival at majority, still has the property or consideration received by him, or any part thereof, he must, upon the avoidance of his act, restore such property or consideration.”

The mortgage to A. F. Wright and J. D. Wright was executed on 3 July, 1925, after each of the plaintiffs had arrived at the age of twenty-one years, and the deed purporting to reeonvey the land to the heirs of James Hughes was executed 12 February, 1926. The plaintiffs therefore are not in a position to restore the unencumbered legal title. The mortgagees have not consented and are not parties to the action. Moreover, the execution of the mortgage by the male plaintiff to his father and his uncle was an express declaration that he claimed and asserted title to the land. Indeed, he covenanted that he was the owner of the land and had the right to convey the title by mortgage. This *544mortgage, instead of being in disaffirmance of tbe contract, was an act of ratification. True, tbe second conveyance of land by a person wbo bas attained bis majority may operate as an avoidance of a former conveyance made by tbe grantor wben under age, as pointed out in Ward v. Anderson, 111 N. C., 115, and Gaskins v. Allen, 137 N. C., 426. But tbis principle for tbe reasons already given, is not applicable to tbe case before us.

Tbe motion for nonsuit should bave been granted.

Error.