| Ark. | Mar 9, 1908
(after stating the facts). The clear preponderof the evidence in the case shows that Mary Hayes and Charles Tobin were minors at the time the deed sought to be disaffirmed was executed. There is testimony adduced tending to show that, at the date of the execution of the deed, their appearance indicated that they were of full age, and that they, together with their mother and older brother, represented themselves to appellee to be of full age. It' is not contended now by appellee that this testimony meets or overcomes the evidence adduced by appellant tending to show that appellants were minors at the date of the execution of the deed in controversy, but it is now contended by appellee that such representations were false, and that by reason of such false representations they are estopped to dis-affirm the deed.
This presents the issue squarely. Can a minor, when he has reached that age of maturity where his appearance indicates that he is of full age, by false representations that he is of age, estop himself from disaffirming the contract? This question is answered in the affirmative in the case of Commander v. Brazil, 41 So. (Miss.) 497, and the cases therein cited. But the court is of the opinion that the rule therein announced is contrary to the weight of authority and to the better reason on the subject. The doctrine that an infant is not estopped by a false representation, as to his age rests upon the principle that one under the disability of minority has no power to remove the disability by a representation, and that his representations can not be of greater force than the contract itself. In a case precisely like this the Supreme Court of the United States used the following language: “An estoppel in pais is not applicable to infants, and a fraudulent representation of capacity cannot be an equivalent for actual capacity. A conveyance by an infant is an assertion of his right, to convey. A contemporaneous declaration of his right or his. .age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented ■or contracted. But he can no more do that effectively than he can make the contract alleged to be confirmed.” Sims v. Everhardt, 102 U. S. 313. This case has been quoted with approval by this court; and, while the precise question involved here has never been passed, upon by this court, the trend of all former decisions in this State has been toward the doctrine that an infant ■cannot estop himself by representations as to his age, for the reason that such an act would denude the minor of the mantle thrown around him by the policy of the law to protect him from the heedlessness of youth and the machinations of others. Watson v. Billings, 38 Ark. 281; Stull v. Harris, 51 Ark. 294" date_filed="1888-11-15" court="Ark." case_name="Stull v. Harris">51 Ark. 294; Fox v. Drewry, 62 Ark. 316" date_filed="1896-04-18" court="Ark." case_name="Fox v. Drewry">62 Ark. 316.
The doctrine that an infant is not estopped to set up his minority because of his false representations as to his age has been announced in the following cases: Conrad v. Lane, 4 N. W. 696; Alt v. Groff, 68 N.W. 11" date_filed="1896-06-19" court="Minn." case_name="State v. Holmes">68 N. W. 11; Alvey v. Reed, 17 N.E. 265" date_filed="1888-06-12" court="Ind." case_name="Alvey v. Reed">17 N. E. 265; Weeland v. Kobick, 51 Am. Rep. 677; Whitcomb v. Joslyn, 31 Am. Rep. 678; Black v. Carolina Building & Loan Association, 25 S. E. 979.
The -two latter cases point out in clear and forcible language the evils that would result from the doctrine of estoppel in such cases. While the rule announced may work a hardship in individual cases, it is better so than that the very weakness that the law is intended to shield the minor against should be turned into a weapon with which to deprive him of his property.
Appellant urges that the probate sale of Holland Tobin’s interest is void for the reason that his guardian did not give the special bond required by section 3803 of Kirby’s Digest. By.a reference to that section, it will be seen that this bond is only required in case of lease or sale of the real estate of a minor for investment. The record in this case shows that the sale was made for the maintenance and education of the minor; consequently tire special bond was not required to be given, and the sale was valid.
Under the authorities supra, 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 contract. In this case the disaffirmance was the date of the commencement of the action.
Under the betterment act, appellee is entitled to taxes, repairs and improvements, and appellants Mary Hayes and Charles Tobin may offset these with rents accruing within three years.
As to Holland Tobin, the decree is affirmed. As'to Mary Hayes and Charles Tobin, the cause is reversed and remanded with directions to enter a decree in their behalf in accordance with this opinion and for such further proceedings as may be necessary to settle the rights of the parties in respect to the improvements, taxes, etc., and the charges that may be set off against them.