indeed, on behalf of an idiot, may avoid his grants or other acts (x). But it hath been said, that a non compos himself, (x) Co. Litt. 247. suffer a recovery; but the act, if permitted, will be legally binding: in this case, the legal maxim is, fieri non debet, sed factum valet. And all acts of record, as, for instance, recognizances entered into, and statutes acknowledged, by a non compos, are legally binding upon himself, his heirs, executors, and administrators: however, as a lunatic is incapable of executing a valid deed, if he attempt to suffer a recovery by his attorney, (to whom he has executed an instrument empowering him so to act), or if he affects to make a tenant to the præcipe by deed, such instruments, being merely matters in pais, may be avoided, and the recovery suffered in pursuance of such void deed will be void also. (Roberts's case, 3 Atk. 312. Sir Butler Wentworth's case, cited in 2 Ves. senr. 403). But, if a person whose sanity at the time is attested by an inquisition returned under a commission de lunatico inquirendo, make a tenant to the præcipe by fine, in order to suffer a recovery; although he do not suffer the recovery in person, but acknowledge a warrant of attorney for that purpose before a judge, these judicial acts will be held so conclusive, that parol evidence will not be admitted to prove the party to have been non compos, at the time of the caption of the fine and acknowledgment of the warrant of attorney. (Hume v. Burton, 1 Ridgw. P. C. 16, 204, 554). Still, though after the adjudications on the subject the legal validity of a fine levied, or of a recovery suffered in person by a lunatic, cannot be disput ed, it must not be inferred that a court of equity, because it cannot reverse such fine or recovery, can give no relief. In the case of Addison v. Dawson, Mascal et al. (2 Vern. 678), Dawson obtained a conveyance of an estate, by fine and recovery, greatly under value, by connivance of Mascal, the solicitor of Addison, who was subsequently found to be a lunatic, by inquisition overreaching the fraudulent transaction, and the court (as the report states the case) set aside the sale. But, in Roberts's case, (3 Atk. 310), the note in Vernon was declared to be imperfect, as had been discovered by examination of the register's book: (see Reg. Lib. 1711, A. fol. 326, which reference the present writer has verified): and Lord Hardwicke observed, that "in Addison v. Mascal, the lunatic was bound, because there was a fine." In fact, the conveyances by fine and recovery were not treated as nullities and set aside; on the contrary, they were ordered to stand good as securities for actual advances; they were so far, only, controlled as they purported to evidence an absolute purchase: and this was in strict conformity with the acknowledged jurisdiction of courts of equity, which (admitting that fines and recoveries are binding in equity as well as at law,) when fraud is apparent on the part of the persons claiming under such assurances, will declare them to be only trustees for the parties defrauded, and decree a reconveyance. (Parkes v. White, 11 Ves. 230. Coleby v. Smith, 1 Vern. 205. Wilkinson v. Brayfield, though he be afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability. The progress of this notion is somewhat curious. In the time of Edward I., non compos was a sufficient plea to avoid a man's own bond (y): and there is a writ in the register (2) for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis suæ, ut dicit, &c. But under Edward III. a scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity (a): and, afterwards, a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner then was) that he was out of his mind when he gave it, the court adjourned (y) Britton, c. 28, fol. 66. (z) Fol. 228. See also Memorand. Scacch. 22 Edw. I. (prefixed to May 2 Vern. 307. Pickett v. Loggon, 14 Ves. 234. Day v. Hungat, 1 Roll. Rep. 115, 116. Baker v. Pritchard, 2 Atk. 389. Pincke v. Thorneycroft, 4 Br. P. C. 92, Toml. ed.) This was the very course pursued in the case of Addison v. Mascal, which, therefore, is not to be considered as in opposition to the current of authorities, with respect to the force of a fine levied, or a recovery suffered, by a lunatic. Neither is it by any means clear, that the case of Clerk v. Clerk, (2 Vern. 412), which Mr. Raithby refers to in his note upon the case of Addison v. Mascal, is anomalous on this point, as that learned gentleman supposed: the inference which he drew from the direction of an issue in Clerk v. Clerk, would doubtless be just, if the fact upon which he founded it did not appear to be misconceived. The issue directed does not seem to have had any relation to nard's year-book, Edw. II.) fol. 23. (a) 5 Edw. III. 70. the settlement in that case, which was confirmed by fine and recovery; that appears, by the report itself, (imperfect as it is), to have been acquiesced in. The issue, therefore, could only have directed with reference to the subsequent settlement, which there is no reason for believing to have been made by act of record. There is, in fact, ground for concluding to the contrary; as, although the registers have been searched in vain, by the present editor, for the final decision of the case, still, an interlocutory order, to be found in Reg. Lib. 1700, A. fol. 139, supports the opinion that the second settlement was not made by any judicial act of record; but was merely an act in pais, executed between the parties by deed, dated 16th October, 1688. Great part of this note is extracted from 2 Hovenden on Frauds, 488-492. the assise; doubting, whether, as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked, how he came to remember the release, if out of his senses when he gave it (a). Under Henry VI. this way of reasoning (that a man shall not be [292] allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument (b); upon a question, whether the heir was barred of his right of entry by the feoffment of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason (c), the maxim that a man shall not stultify himself hath been handed down as settled law (d): though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it (e). And, clearly, the next heir, or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant (f). And so too, if he purchases under this disability, and does not afterwards upon recovering his senses agree to the purchase, his heir may either waive or accept the estate at his option (g). In upon recovering like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heirs may waive it after him (h). Persons also, who purchase or convey under duress, may affirm or avoid such transaction, whenever the duress is ceased (i) (6). For all these are under the protection of the law; But such conveyances may be either con firmed or avoid ed-by the idiot or non compos, his senses-by the infant, when of full age-or, when the duress has ceased. (a) 35 Assis. pl. 10. (b) 39 Hen. VI. 42. (d) Litt. s. 405. Cro. Eliz. 398. 4 (e) Comb. 469. 3 Mod. 310, 311. (6) Where a deed has been prepared in pursuance of personal instructions of the conveying party; yet, if it be proved that such party, though appear 1 Eq. Cas. Abr. 279. (f) Perkins, s. 21. (i) 2 Inst. 483. 5 Rep. 119. ing to act voluntarily, was in fact not a free agent, but so subdued by harshness and cruelty that the deed spoke the mind, not of the party executing, which will not suffer them to be imposed upon, through the imbecility of their present condition; so that their acts are only binding, in case they be afterwards agreed to, when such imbecility ceases. Yet the guardians or committees of a lunatic, by the statute of 11 Geo. III. c. 20, are impowered to renew in his right, under the directions of the court of Chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunatic, his heirs or executors (7). but of another, such deed cannot, in equity, stand: though it may be difficult to make out a case of legal duress. (Peel v. 16 Ves. 159, citing Lady Strathmore v. Bowes, 1 Ves. jun. 22). When the execution of a deed is prevented, or compelled, by force or artifice, equity will give relief, (Middleton v. Middleton, 1 Jac. & Walk. 96), in favour of a volunteer, and even, in some cases, as against innocent parties; (Mastaer v. Gillespie, 11 Ves. 639); for, it would be almost impossible ever to reach a case of fraud, if third persons were allowed to retain gratuitous benefits, which they have derived from the fraud, imposition, or undue influence practised by others. (Huguenin v. Bazeley, 14 Ves. 289. Stilwell v. Wilkins, Jacob's Rep. 282). Still, it would be pushing this principle too far to extend it to innocent purchasers: (Lloyd v. Passingham, Coop. 155): it is only when an estate has been obtained by a third person without payment, or with notice of fraud, that a court of equity will take it from him, to restore it to the party who has been defrauded of it; (Mackreth v. Symmons, 15 Ves. 340); a bona fide purchaser, for valuable consideration and without notice, will not be deprived of the advantage which his legal title gives him. (Jerrard v. Saunders, 2 Ves. jun. 457). (7) And by virtue of the statute of 29 Geo. II. c. 31, the committee of a lunatic may surrender existing leases in order to obtain renewals thereof, to the same uses, and liable to the same trusts and conditions, as the former leases. By the statute of 43 Geo. III. c. 75, the sale or mortgage of the estates of lunatics is authorized for certain purposes; and it is enacted that committees may not only grant leases of tenements in which a non compos has an absolute estate, but, where the lunatic has a limited estate with a power of granting leases on fines, for lives or years, such power may be executed by his committee under the direction of the great seal; this power is extended to lands in antient demesne, by statute 59 Geo. III. c. 80, and the power of selling or mortgaging the estates of lunatics, given by the statute of 43 Geo. III. c. 75, is extended by the 9 Geo. IV. c. 78, and may be exercised for any such purposes as the Lord Chancellor shall di rect. Where estates are vested in trustees, who are infants, idiots, lunatics, or trustees of unsound mind, or who cannot be compelled or refuse to act, the conveyance and transfer of such estates is provided for by the statute of 6 Geo. IV. c. 74, which consolidates and Purchase by a feme covert, voidable; The case of a feme covert is somewhat different. She may purchase an estate without the consent of her husband, and the conveyance is good during the coverture, till he [ *293] avoids *it by some act declaring his dissent (k). And, conveyance void. though he does nothing to avoid it, or even if he actually consents, the feme covert herself may, after the death of her husband, waive or disagree to the same: nay, even her heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agreement (7). But the conveyance or other contract of a feme covert (except by some matter of record) is absolutely void, and not merely voidable (m); and therefore cannot be affirmed or made good by any subsequent agreement (8). amends the previous enactments on the subject. (8) The rule laid down in the text must be understood with some obvious qualifications. The possession by a married woman of property settled to her separate use, may, as a necessary incident, carry with it the right of disposition over such property. (Rich v. Cockell, 9 Ves. 375. Fettiplace v. Gorges, 1 Ves. jun. 49. Tappenden v. Walsh, 1 Phillim. 352. Grigby v. Cox, 1 Ves. sen. 518. Bell v. Hyde, Prec. in Cha. 330). A court of equity has no power to set aside, but is bound to give effect to, a disposition made by a feme coverte of property settled to her separate use, though such disposition be made in favour of her husband, or even of her own trustee; notwithstanding it may be plain, that the whole object of the settlement in the wife's favour may be counteracted by this exercise of her power. (Pybus v. Smith, 1 Ves. jun. 194. Parkes v. White, 11 Ves. 221, 222. Jackson v. Hobhouse, 2 Meriv. 487. Nantes v. Corrock, 9 Ves. 189. (m) Perkins, s. 154. 1 Sid. 120. Sperling v. Rochfort, 8 Ves. 175. Sturgis v. Corp, 13 Ves. 190. Glyn v. Baxter, 1 Younge & Jerv. 332. Acton v. White, 1 Sim. & Stu. 432). And the assent of trustees to whom property is given for the separate use of a married woman, is not necessary to enable her to bind that property as she thinks fit; unless such assent is required by the instrument under which she is beneficially entitled to that property. (Essex v. Atkins, 14 Ves. 547. Brown v. Like, 14 Ves. 302. Pybus v. Smith, 1 Ves. jun. 194). So, as Mr. Sugden, in the 3rd chapter of his Treatise on Powers, adduces numerous authorities to prove, it has long been settled, that a married woman may exercise a power over land, or, in other words, direct a conveyance of that land, whether the power be appendant, in gross, or simply collateral; and as well whether the estate be copyhold or freehold. (Doe v. Staple, 2 T. R. 695. Tomlinson v. Dighton, 1 P. Wms. 149. Hearle v. Greenbank, 3 Atk. 711. Peacock v. Monk, 2 Ves. |