STONE, J.
The rule we have established in reviewing findings of the court of chancery on facts, is to affirm, unless we are clearly convinced the court has erred. But if clearly convinced of error, a reversal follows.-Rather v. Young, 56 Ala. 94; Bryan v. Hendrix, 57 Ala. 387; Nooe’s Ex'r. v. Garner's Adm’r. 70 Ala. 443. We have very carefully examined the testimony in this case, and have reached the following conclusions:
First, that when the deed of the mineral rights was made to Giles Edwards and his associates — June 12th, 1869,- — Joseph 0. Burgin and Ann Judson Thrasher were each under twenty-one years of age; that Joseph C. was born in January, 1850, and Ann Judson in February, 1852. On this point, we think the testimony leaves no room for doubt.
Second, it is contended that on the day when. the deed to Edwards was executed, Mary Burgin, their mother, stated, in the presence of Joseph O. and Ann Judson, that they were each of lawful age, and that neither of them contradicted her statement. Some other testimony is offered, tending to show Joseph O. Burgin stated he was then twenty-one years old. This testimony is relied on by appellees in two aspects: first, as an estoppel i/n, pads; and, second, as proving fraud on their part, which will deprive them of their plea of infancy. We consider it unnecessary to decide either of these legal questions, [255]*255for the proof is wholly insufficient to establish the alleged fact. On the contrary, taking the testimony for our guide, we are clearly convinced that if the chancellor found such declaration had been made in their presence and hearing, he erred. See Clark v. Goddard, 39 Ala. 164.
Third, it is contended that the deed of Mary T. Burgin was made to Joseph 0. and Ann Judson, in trust for all the children of Jesse Burgin, their father. The testimony is wholly insufficient to establish this. In truth, there is no legal testimony bearing on this question. What Mary T. Burgin may have said, after executing the deed, of what her intention had been in its execution, can not vary, affect, or impair the rights of the grantees under it.-1 Brick. Dig. 843, §§ 554-5; Ib. 844, § 563. But if this alleged fact were proved, the legal effect would probably be the same.-Patton v. Beecher, 62 Ala. 579; Lehman v. Lewis, Ib. 129.
We have not found in this record any evidence that either-Joseph C. or Ann Judson ratified the sale and conveyance made to Edwards and his associates, after the former became of age. Mere inaction1 for the time shown in this record can not be construed into a ratification. It requires some positive act knowingly done, affirming the contract, or which is inconsistent with the right to repudiate it, to constitute a binding ratification, unless the sale and conveyance are acquiesced in for a. sufficient time to perfect a bar.-Slaughter v. Cunningham, 24 Ala. 260; 7 Wait’s Actions & Def. 144; Tucker v. Moreland, 10 Pet. 58; Irvine v. Irvine, 9 Wallace, 617; Derrick v. Kennedy, 4 Por. 41; Chapin v. Shafer, 49 N. Y. 406; N. H. Mut. Ins. Co. v. Noyes, 32 N. Y. 345; Boody v. McKenny, 23 Me. 517; Thomas v. Pullis, 56 Mo. 211; Walker v. Ellis, 12 Ill. 470; Prout v. Wiley, 28 Mich. 164; Dixon v. Merritt, 21 Min. 196.
There is nothing in the argument that when the Eureka Company, and those under whom it claims, acquired their title, Giles Edwards and his associates were in possession of the lands, claiming ownership of the minerals, and that complainant’s purchase was therefore void. To come within this principle, there must be an actual adverse holding under claim of right.-Bernstein v. Humes, 60 Ala. 582. There is no evidence that Edwards and his associates were in the actual possession of the lands at any timé.
The present bill was filed by the Eureka Company, averring and proving it was in possession; and it seeks to have the deed to Edwards and his associates cancelled, as a cloud on the title of complainant. It avers that the title in fee to the lands was in Joseph C. and Ann Judson, at the time Mary Burgin and all her children conveyed the mineral rights to Giles Edwards [256]*256and associates, that of the purchase-money paid for the mineral rights — eleven hundred dollars — only one hundred dollars each was received by said Joseph C.’ and Ann Judson, and that they had each used and expended said money before they severally reached the age of twenty-one years. The testimony proves these averments to be true. The title set up by complainant is as follows: Conveyance of Joseph C. Burgin of his half interest to Salmons, and of Ann Judson Thrasher and her husband of her half interest to McDougal, and conveyance by him to Salmons; then conveyance by the latter to the complainant. It is thus shown that appellant — complainant below —stands in the shoes, and can assert only the rights which Joseph 0. Burgin and Ann Judson Thrasher could originally assert. Appellee contends that if the complainant has made a good case on all the points noted above, the contract of sale to Edwards and associates can be disaffirmed and set aside, only on condition that the money paid by them for the mineral rights is either paid or tendered to them; and that inasmuch as the present bill seeks affirmative relief against their prior purchase,- the bill should tender to them the eleven hundred dollars they paid, and interest upon it. The defense further claims that, if mistaken in the amount the complainant should have offered to pay, the bill should at least have offered to refund the two hundred dollars received by Joseph C. and Ann Judson, and interest upon it.
A distinction is taken in the books between executory and executed contracts made by infants. In the former class of cases, if the infant on becoming of age disaffirms the contract, then the adult purchaser or contractor will be forced to become the actor, to have the contract performed. In such case the infant, or quondwin infant, is under no conditions or limitations in asserting the invalidity of the contract. Being voidable, and he making timely election to avoid by pleading his minority, his defense, if sustained by proof, will prevail, tie need not tender back any thing he may have acquired or received under the contract. The most that can be required of him is, that if he retained and held all or any part of what he had received under the contract until he reached the age of twenty-one, then, on demand or suit, he can be held to account for it. The rule is different when the contract has been executed. Then the quondam infant, or any one asserting claim in his right, mtist become the actor; and coming into court in quest of equity, he must do, or offer to do equity, as a condition on which relief will be decreed to him. This is the difference between asking and resisting relief.-Roof v. Stafford, 7 Cow. 179; Hillyer v. Bennett, 3 Edw. Ch. 222; Bartholomew v. Finnemore, 17 Barb. 428; Smith v. Evans, 5 Humph. 70; [257]*257Mustard v. Wohlford, 15 Grat. 329; Bedinger v. Wharton, 27 Grat. 857. But it is only in equity this principle obtains. If the suit be at law, the tender need not- ordinarily be made, as a condition of recovering the. property. But if the suit be in equity, and if the money or other valuable thing be still in esse,
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STONE, J.
The rule we have established in reviewing findings of the court of chancery on facts, is to affirm, unless we are clearly convinced the court has erred. But if clearly convinced of error, a reversal follows.-Rather v. Young, 56 Ala. 94; Bryan v. Hendrix, 57 Ala. 387; Nooe’s Ex'r. v. Garner's Adm’r. 70 Ala. 443. We have very carefully examined the testimony in this case, and have reached the following conclusions:
First, that when the deed of the mineral rights was made to Giles Edwards and his associates — June 12th, 1869,- — Joseph 0. Burgin and Ann Judson Thrasher were each under twenty-one years of age; that Joseph C. was born in January, 1850, and Ann Judson in February, 1852. On this point, we think the testimony leaves no room for doubt.
Second, it is contended that on the day when. the deed to Edwards was executed, Mary Burgin, their mother, stated, in the presence of Joseph O. and Ann Judson, that they were each of lawful age, and that neither of them contradicted her statement. Some other testimony is offered, tending to show Joseph O. Burgin stated he was then twenty-one years old. This testimony is relied on by appellees in two aspects: first, as an estoppel i/n, pads; and, second, as proving fraud on their part, which will deprive them of their plea of infancy. We consider it unnecessary to decide either of these legal questions, [255]*255for the proof is wholly insufficient to establish the alleged fact. On the contrary, taking the testimony for our guide, we are clearly convinced that if the chancellor found such declaration had been made in their presence and hearing, he erred. See Clark v. Goddard, 39 Ala. 164.
Third, it is contended that the deed of Mary T. Burgin was made to Joseph 0. and Ann Judson, in trust for all the children of Jesse Burgin, their father. The testimony is wholly insufficient to establish this. In truth, there is no legal testimony bearing on this question. What Mary T. Burgin may have said, after executing the deed, of what her intention had been in its execution, can not vary, affect, or impair the rights of the grantees under it.-1 Brick. Dig. 843, §§ 554-5; Ib. 844, § 563. But if this alleged fact were proved, the legal effect would probably be the same.-Patton v. Beecher, 62 Ala. 579; Lehman v. Lewis, Ib. 129.
We have not found in this record any evidence that either-Joseph C. or Ann Judson ratified the sale and conveyance made to Edwards and his associates, after the former became of age. Mere inaction1 for the time shown in this record can not be construed into a ratification. It requires some positive act knowingly done, affirming the contract, or which is inconsistent with the right to repudiate it, to constitute a binding ratification, unless the sale and conveyance are acquiesced in for a. sufficient time to perfect a bar.-Slaughter v. Cunningham, 24 Ala. 260; 7 Wait’s Actions & Def. 144; Tucker v. Moreland, 10 Pet. 58; Irvine v. Irvine, 9 Wallace, 617; Derrick v. Kennedy, 4 Por. 41; Chapin v. Shafer, 49 N. Y. 406; N. H. Mut. Ins. Co. v. Noyes, 32 N. Y. 345; Boody v. McKenny, 23 Me. 517; Thomas v. Pullis, 56 Mo. 211; Walker v. Ellis, 12 Ill. 470; Prout v. Wiley, 28 Mich. 164; Dixon v. Merritt, 21 Min. 196.
There is nothing in the argument that when the Eureka Company, and those under whom it claims, acquired their title, Giles Edwards and his associates were in possession of the lands, claiming ownership of the minerals, and that complainant’s purchase was therefore void. To come within this principle, there must be an actual adverse holding under claim of right.-Bernstein v. Humes, 60 Ala. 582. There is no evidence that Edwards and his associates were in the actual possession of the lands at any timé.
The present bill was filed by the Eureka Company, averring and proving it was in possession; and it seeks to have the deed to Edwards and his associates cancelled, as a cloud on the title of complainant. It avers that the title in fee to the lands was in Joseph C. and Ann Judson, at the time Mary Burgin and all her children conveyed the mineral rights to Giles Edwards [256]*256and associates, that of the purchase-money paid for the mineral rights — eleven hundred dollars — only one hundred dollars each was received by said Joseph C.’ and Ann Judson, and that they had each used and expended said money before they severally reached the age of twenty-one years. The testimony proves these averments to be true. The title set up by complainant is as follows: Conveyance of Joseph C. Burgin of his half interest to Salmons, and of Ann Judson Thrasher and her husband of her half interest to McDougal, and conveyance by him to Salmons; then conveyance by the latter to the complainant. It is thus shown that appellant — complainant below —stands in the shoes, and can assert only the rights which Joseph 0. Burgin and Ann Judson Thrasher could originally assert. Appellee contends that if the complainant has made a good case on all the points noted above, the contract of sale to Edwards and associates can be disaffirmed and set aside, only on condition that the money paid by them for the mineral rights is either paid or tendered to them; and that inasmuch as the present bill seeks affirmative relief against their prior purchase,- the bill should tender to them the eleven hundred dollars they paid, and interest upon it. The defense further claims that, if mistaken in the amount the complainant should have offered to pay, the bill should at least have offered to refund the two hundred dollars received by Joseph C. and Ann Judson, and interest upon it.
A distinction is taken in the books between executory and executed contracts made by infants. In the former class of cases, if the infant on becoming of age disaffirms the contract, then the adult purchaser or contractor will be forced to become the actor, to have the contract performed. In such case the infant, or quondwin infant, is under no conditions or limitations in asserting the invalidity of the contract. Being voidable, and he making timely election to avoid by pleading his minority, his defense, if sustained by proof, will prevail, tie need not tender back any thing he may have acquired or received under the contract. The most that can be required of him is, that if he retained and held all or any part of what he had received under the contract until he reached the age of twenty-one, then, on demand or suit, he can be held to account for it. The rule is different when the contract has been executed. Then the quondam infant, or any one asserting claim in his right, mtist become the actor; and coming into court in quest of equity, he must do, or offer to do equity, as a condition on which relief will be decreed to him. This is the difference between asking and resisting relief.-Roof v. Stafford, 7 Cow. 179; Hillyer v. Bennett, 3 Edw. Ch. 222; Bartholomew v. Finnemore, 17 Barb. 428; Smith v. Evans, 5 Humph. 70; [257]*257Mustard v. Wohlford, 15 Grat. 329; Bedinger v. Wharton, 27 Grat. 857. But it is only in equity this principle obtains. If the suit be at law, the tender need not- ordinarily be made, as a condition of recovering the. property. But if the suit be in equity, and if the money or other valuable thing be still in esse, and in possession of the par.ty seeking the relief, or in him from whom the right to sue is derived, the bill, to be sufficient, must tender, or offer to produce or pay, as the case may be. Not so, if the infant has used or consumed it during his minority.-Badger v. Phinney, 15 Mass. 359; Price v. Furman, 27 Verm. 268; Chandler v. Simmons, 97 Mass. 508; Walsh v. Young, 110 Mass. 396; Green v. Green, 69 N. Y. 553; Dill v. Bowen, 54 Ind. 204; Phillips v. Green, 5 T. B. Monroe, 344; Goodman v. Winter, 64 Ala. 410; Roberts v. Wiggin, 1 N. H. 73.
We have examined Martin v. Martin, 35 Ala. 560, and think the first principle stated in the opinion is not supported by the authorities cited, or by principle.
The bill in the present case avers, and the proof sustains it; that the money received by Joseph C. and Ann Judson in the sale to Edwards, had been consumed and disposed of by them while they were minors. This relieved complainant of the duty of tendering, or offering to pay. If it did not, then the offer in the present bill would be insufficient. The offer is “ to do equity, and to abide. by and- perform such things as, under equity and good conscience, may seem meet to entitle it to a decree for the cancellation of said deed.” The offer should have been to refund the money, with interest. There was, however, no demurrer to the bill. Under no circumstances, would it be necessary for Joseph C. and Ann Judson to repay the money which had been paid to the other Burgins.
There is nothing in the argument that McDóugal, Salmons and the Eureka Company had notice of the prior conveyance to Edwards. That conveyance conferred a legal title, or it conferred nothing. It is only when there is a prior right, legal or equitable, that notice, actual or constructive, becomes material, to intercept or dominate an after acquired title. The disaffirmance of the sale made by the infants to Edwards, destroyed all his claim, both legal and equitable, which their deed had vested in him, and left in him no pretense of any equity, to assert against a later purchaser with notice.
The decree of the chancellor is reversed, and the cause remanded, that the complainant may have the relief prayed by its bill. It should be borne in mind that the deed to Edwards and associates can be cancelled only as to 'Joseph O. and Ann Judson. The grantees are entitled to the custody and owner-[258]*258sbip of their deed, as against the other grantors. The deed should not, on its face, be marred or mutilated.