It was held by his Honor, as matter of law, that the payment of $500 by the defendant to the plaintiff, while she was a minor, did not operate to discharge pro tanto his debt to her, and, as the jury was not permitted to consider the evidence introduced by the defendant, we must, for the purposes of this appeal, accept it as true, and give the defendant the benefit of all reasonable inferences that may be deduced from it.
When it is so considered it establishes that a contract was entered into on 30 April, 1890, by the defendant and his wife, by virtue of which the defendant was to become the owner of a certain tract of land if he survived his wife, upon the payment of $600 to the plaintiff, who was then Eula Yanstory; that the said Eula Yanstory intermarried with A. D. Chandler before she was 21 years of age; that she and her *572husband bought a tract of land of one Lambeth; that there was a mortgage upon the land; that the plaintiff and her husband requested the defendant to advance the sum of $500 on the amount due by him to the plaintiff under the contract with his wife for the purpose of paying off and discharging'the mortgage on the land bought by the plaintiff and her husband; that the defendant advanced the said sum to the plaintiff and her husband, and that it was used in paying off and discharging the said mortgage; that the plaintiff became 21 years of age about nineteen years ago, and that she has done no act disaffirming said payment until the commencement of this action.
Do these facts furnish evidence of a ratification by the plaintiff or can she now disaffirm the same and recover the full amount of $600 ?
The contract of an infant is voidable and not void, and it may be either ratified or disaffirmed, upon attaining majority, at the election of the infant.
If money is paid to an infant upon a contract, and it is consumed or wasted, the infant may recover the full amount due under the contract; but if the money is used for his benefit and he has in hand property in which it has been invested, he cannot retain the property without allowing a just credit for the money paid to him; and if after becoming of age he continues to hold the property and uses it or disposes of it, this is evidence of a ratification. Caffey v. McMichael, 64 N. C., 508; Skinner v. Maxwell, 66 N. C., 48; MacGreal v. Taylor, 167 U. S., 688.
In the last case cited, and in the note to this case as reported in 42 Law Ed., p. 326, a great many authorities are cited in support of these principles.
Let us then see if the plaintiff has received any benefit from the payment of the $500 by the defendant which she still enjoys, and whether since she became of age she has done any act ratifying the payment made by the defendant.
If there was a mortgage upon the land bought by the plaintiff and her husband, and if at their request the defendant advanced $500 to discharge the mortgage lien and it was so used, then upon a disaffirmance of the payment by the plaintiff, the defendant had the right in equity to be subrogated to the right of the creditor who held the mortgage, and to enforce payment of the mortgage as against the plaintiff and her. husband.
If so, the plaintiff and her husband, if they still retain the title to the land bought from Lambeth, are holding the land freed of an encumbrance which has been paid off by the defendant with money which the *573plaintiff is now seeking to recover, and if tbe Lambetb land is not now owned by tbe plaintiff and ber bnsband, it must bave been conveyed by tbem after sbe reached ber majority, clear of tbe mortgage lien; and in either event it would furnish evidence of a ratification.
It does not clearly appear from tbe record whether tbe title to tbe Lambetb land was taken in tbe name of tbe plaintiff or ber husband; but if tbe title was to tbe latter, which is tbe strongest view for tbe plaintiff, and it has not been disposed of, tbe plaintiff derives tbe benefit from tbe payment of tbe money of having ber dower right cleared of tbe encumbrance and of having tbe defendant to forego bis right to be subrogated to tbe right of tbe mortgage creditor, which, of course, be could not do if be is allowed tbe credit of $500.
Tbe MacGreal case is also authority for tbe position that if tbe plaintiff joined in a conveyance of tbe Lambetb land free from encumbrances after becoming of age, with knowledge of all tbe facts, that this would be a ratification, and that if sbe and ber husband now own tbe land, that they bave in band, in legal effect, tbe money of tbe defendant, since they do not recognize tbe right of tbe defendant to be subrogated to tbe rights of tbe mortgage creditor.
In that case Mrs. MacGreal, while an infant, executed a deed of trust to secure $8,000 borrowed from Mrs. Utermehle, which was used in paying certain mortgage debts on the land conveyed in tbe deed of trust, and when sbe came of age she refused to abide by tbe deed of trust, on account of infancy.
Tbe Court in dealing with tbe question said: “These debts having been paid by Mrs. Utermehle, the appellees are entitled, in equity, to be subrogated to tbe rights of tbe persons who held them, and who were about to foreclose tbe liens therefor when tbe application was made to Mrs. Utermehle for the loan of $8,000 to be used in meeting those debts and in improving tbe lot in question. 1 Jones Mortg., 874, 877, and authorities cited. And within tbe meaning of tbe rule that, upon tbe infant’s disaffirmance of bis contract, the other party is entitled to recover tbe consideration paid by him which remains in tbe infant’s bands or under bis control, it may well be held — and gross injustice will be done in this case if it be not so held — that tbe money borrowed from Mrs. Utermehle is, in every just sense, in tbe hands of Mrs. MacGreal. To say that tbe consideration paid to Mrs. MacGreal for tbe deed of trust of 1889 is not in ber hands, when the money has been put into ber property in conformity with the disaffirmed contract, and notwithstanding such property is still held and enjoyed by ber, is to sacrifice substance to form, and to make the privilege of infancy a sword to be used to tbe injury of others, although tbe law intends it simply as a shield to protect the infant from injustice and wrong.”'
*574In addition to -this, tbe plaintiff bas waited nearly twenty-tbree years after tbe payment was made, nineteen years after attaining ber majority, and more than- three years after ber disabilities as a married woman were removed, without giving any indication that she disaffirmed tbe X^ayment or that she would seek to recover tbe full amount of $600 from tbe defendant, and it was decided in Weeks v. Wilkins, 134 N. C., 524, that an infant will be held to have fully ratified bis contract unless be disaffirms it within a reasonable time, which is three years after becoming of age.
It is true, as contended by tbe plaintiff, that she did not have a right of action to recover tbe $600 until tbe death of tbe wife of tbe defendant, which was in October, 1915, and that tbe bringing of an action is a disaffirmance; but this contention was also met in Weeks v. Wilkins; and it was held that although tbe right of action did not exist, that tbe infant could in some other way give evidence that she did not intend to .abide by tbe contract.
In tbe Weeks case tbe plaintiff bad executed a deed, while an infant, for land in which bis mother owned a life estate. He commenced an action to recover tbe land more than three years after becoming of age. and within three years after tbe death of bis mother. Tbe Court quotes from Devlin on Deeds: “Tbe most reasonable rule seems to be that tbe right of disaffirmance should be exercised within a reasonable time after tbe infant attains bis majority, or else bis neglect to avail himself of this -privilege should be deemed an acquiescence and affirmation on bis part of bis conveyance. Tbe law considers bis contract a voidable one on account of its tender solicitude for bis rights and tbe fear that be may be imposed upon in bis bargain. But be is certainly afforded ample protection by allowing him a reasonable time after he reaches bis majority to determine whether be will abide by bis conveyance executed while be was a minor, or will disaffirm it. And it is no more than just and reasonable that if be silently acquiesces in bis deed and makes no effort to express bis dissatisfaction with bis act, be should, after tbe lapse of a reasonable time, dependent upon circumstances, be considered as fully ratifying it,” and adds: “We think this is a just and reasonable rule.” Tbe Court then says: “Tbe statute gives him three years after arrival at majority within which to bring bis action against a dis-seizor. It seems to us that tbe same time, by analogy, should be fixed as tbe period within which be should determine whether be will dis-affirm bis deed. But it is said that Mrs. Hester Weeks owned tbe life estate, and that pending such estate be bad no right of action to sue for tbe possession of tbe land. We do not think this material. His right to disaffirm bis deed was entirely independent of bis right to tbe possession of tbe land. He could easily have disaffirmed by returning tbe purchase money or by some other unequivocal act.”
We are therefore of opinion that there is evidence of ratification which ought to be submitted to a jury.