conversely, when an agent becomes insane, it certainly gives ground for a rescission of the contract by which he was appointed, even if it does not ipso facto revoke his authority. And again, where one undertakes to deal with an agent having a written power of attorney, and both he and the agent know that the principal is insane, the transaction thus effected has no greater weight than if it had been made directly with the insane principal himself.25 24 § 255. Contracts and Deeds Voidable or Void.-In Alabama, it is firmly held that a deed, mortgage, or other conveyance made by a person who is permanently insane is not merely voidable, but is absolutely void for all purposes, and passes no title whatever to the grantee or mortgagee.20 And this rule is likewise recognized in a few other states, a deed so made being held absolutely void, without regard to the adequacy of the consideration, and incapable of validation by being recorded." But this doctrine is contrary to the immense preponderance of the authorities, the rule almost universally prevailing in modern times being that the contracts, as well as the deeds and conveyances of a person who is actually insane at the time, but not judicially so adjudged and not under guardianship, are voidable for that cause, on equitable principles, but not absolutely. void.28 Very important consequences follow from observ 24 Story, Agency, § 487. 25 Merritt v. Merritt, 27 App. Div. 208, 50 N. Y. Supp. 604. 26 Boddie v. Bush, 136 Ala. 560, 33 South. 826; Dougherty v. Powe, 127 Ala. 577, 30 South. 524; Wilkinson v. Wilkinson, 129 Ala. 279, 30 South. 578; Galloway v. Hendon, 131 Ala. 280, 31 South. 603; Harris v. Jones, 188 Ala. 633, 65 South. 956; Lewis v. Alston, 176 Ala. 271, 58 South. 278; Birmingham Ry., Light & Power Co. v. Hinton, 158 Ala. 470, 48 South, 546. 27 McEvoy v. Tucker (Ark.) 171 S. W. 888; Rogers v. Blackwell, 49 Mich. 192, 13 N. W. 512; Wager v. Wagoner, 53 Neb. 511, 73 N. W. 939; Thompson v. Thomas, 163 N. C. 500, 79 S. E. 896; Bowman v. Wade, 54 Or. 347, 103 Pac. 72; Cason v. Cason, 116 Tenn. 173, 93 S. W. 89. 28 Green v. Hulse, 57 Colo. 238, 142 Pac. 416; Coburn v. Raymond, 76 Conn. 484, 57 Atl. 116, 100 Am. St. Rep. 1000; Ratliff v. Baltzer's Adm'r, 13 Idaho, 152, 89 Pac. 71; Walton v. Malcolm, 264 Ill. 389, 106 N. E. 211, Ann. Cas. 1915D, 1021; Somers v. Pumphrey, 24 Ind. 231; Fay v. Burditt, 81 Ind. 433, 42 Am. Rep. 142; Etna Life Ins. Co. v. Sellers, 154 Ind. 370, 56 N. E. 97, 77 Am. St. Rep. 481; Downham v. Holloway, 158 Ind. 626, 64 N. E. 82, 92 Am. St. Rep. 330; ing this distinction. For if the deed of an insane grantor is not void, but only voidable, it will suffice to vest the legal title in the grantee unless and until it shall be disaffirmed by the grantor or some one having authority to act for him or by his heirs, or set aside by decree of a court. 2o And it can be set aside only in an action brought directly for that purpose in a court of competent jurisdiction and on the specific ground of the insanity of the grantor.30 And if such a deed is merely voidable, it will not be set aside except on equitable terms and conditions, and only on a 29 McMillan v. William Deering & Co., 139 Ind. 70, 38 N. E. 398; Barkley v. Barkley, 182 Ind. 322, 106 N. E. 609, L. R. A. 1915B, 678; Wilson v. Fahnestock, 44 Ind. App. 35, 86 N. E. 1037; Willis v. Mason, 140 Ky. 88, 130 S. W. 964; Dowell v. Dowell's Adm'r, 137 Ky. 167, 125 S. W. 283; Johnson's Committee v. Mitchell, 146 Ky. 382, 142 S. W. 675; Lexington & E. Ry. Co. v. Napier's Heirs, 160 Ky. 579, 169 S. W. 1017; Wathens v. Skaggs, 161 Ky. 600, 171 S. W. 193; Snowman v. Herrick, 111 Me. 587, 90 Atl. 479; Riley v. Carter, 76 Md. 581, 25 Atl. 667, 19 L. R. A. 489, 35 Am. St. Rep. 443; Morris v. Great Northern Ry. Co., 67 Minn. 74, 69 N. W. 628; Scott v. Hay, 90 Minn. 304, 97 N. W. 106; Schaps v. Lehner, 54 Minn. 208, 55 N. W. 911; Jamison v. Culligan, 151 Mo. 410, 52 S. W. 224; Rhoades v. Fuller, 139 Mo. 179, 40 S. W. 760; McAnaw v. Tiffin, 143 Mo. 667, 45 S. W. 656; Hill-Dodge Banking Co. v. Loomis, 140 Mo. App. 62, 119 S. W. 967; Robinson v. Kind, 25 Nev. 261, 59 Pac. 863, 62 Pac. 705; Blinn v. Schwarz, 177 N. Y. 252, 69 N. E. 542, 101 Am. St. Rep. 806; Smith v. Ryan, 191 N. Y. 452, 84 N. E. 402, 19 L. R. A. (N. S.) 461, 123 Am. St. Rep. 609, 14 Ann. Cas. 505; Hallohan v. Rempe, 66 Misc. Rep. 27, 120 N. Y. Supp. 901; Beeson v. Smith, 149 N. C. 142, 62 S. E. 888; Allred v. Smith, 135 N. C. 443, 47 S. E. 597, 65 L. R. A. 924; Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115; Mitchell v. Inman (Tex. Civ. App.) 156 S. W. 290; Gulf, C. & S. F. Ry. Co. v. Stubbs (Tex. Civ. App.) 166 S. W. 699; Hancock v. Haile (Tex. Civ. App.) 171 S. W. 1053; French Lumbering Co. v. Theriault, 107 Wis. 627, 83 N. W. 927, 51 L. R. A. 910, 81 Am. St. Rep. 856. And see Ferguson v. Fitze (Tex. Civ. App.) 173 S. W. 500. On this principle, when an incompetent person enters into an otherwise binding contract, it may be repudiated by him or his representative within a reasonable time, or otherwise it is affirmed. Weber v. Bottger (Iowa) 154 N. W. 579. But a person who is an idiot from his birth, and unable to read or write or to perform the simplest tasks, is entirely incompetent to contract and his contracts are void. Ramirez v. Lasater (Tex. Civ. App.) 174 S. W. 706. 29 Walton v. Malcolm, 264 Ill. 389, 106 N. E. 211, Ann. Cas. 1915D, 1021; Barkley v. Barkley, 182 Ind. 322, 106 N. E. 609, L. R. A. 1915B, 678. 30 Hallohan v. Rempe, 66 Misc. Rep. 27, 120 N. Y. Supp. 901. 31 Hill-Dodge Banking Co. v. Loomis, 140 Mo. App. 62, 119 S. W. showing that there was unfairness or injustice in the transaction, an inadequate consideration, or some fraudulent advantage taken of the grantor's incapacity.32 But at the same time, if a sufficient case for cancellation is made out, a decree will not be withheld merely because it appears that the grantee did not know of the insanity of the grantor and obtained the conveyance without fraud and for an adequate consideration.33 § 256. Liability for Necessaries and Contracts Beneficial to Lunatic.-Contracts made with insane persons to supply them with the necessaries of existence, or with things suitable to their condition and habits of life and therefore reasonably necessary for them, are not absolutely void, but at most voidable, if free from fraud or extortion, and the fair and reasonable value of articles furnished under such contracts (not necessarily the price agreed upon) should be paid by the insane persons or out of their estates; and the rule is the same where the law raises an implied contract from the furnishing and acceptance of such necessaries.** This rule is enacted by statute in some of the states, where it is provided that "a person entirely without understanding has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or the support of his family." 35 And 32 Lexington & E. Ry. Co. v. Napier's Heirs, 160 Ky. 579, 169 S. W. 1017. 33 Mitchell v. Inman (Tex. Civ. App.) 156 S. W. 290. 84 Borum v. Bell, 132 Ala. 85, 31 South. 454; Ex parte Northington, 37 Ala. 496, 79 Am. Dec. 67; State Commission in Lunacy v. Eldridge, 7 Cal. App. 298, 94 Pac. 597, 600; Ratliff v. Baltzer's Adm'r, 13 Idaho, 152, 89 Pac. 71; Fruitt v. Anderson, 12 Ill. App. 421; Palmer v. Hudson River State Hospital, 10 Kan. App. 98, 61 Pac. 506; Smith's Committee v. Forsythe, 28 Ky. Law Rep. 1034, 90 S. W. 1075; Fitzgerald v. Reed, 9 Smedes & M. (Miss.) 94; Gross v. Jones, 89 Miss. 44, 42 South. 802; Reando v. Misplay, 90 Mo. 251, 2 S. W. 405, 59 Am. Rep. 13; Sceva v. True, 53 N. H. 627; Shaper v. Wing's Estate, 2 Hun (N. Y.) 671; Richardson v. Strong, 35 N. C. 106, 55 Am. Dec. 430; Kimball v. Bumgardner, 16 Ohio Cir. Ct. R. 587; Johnson v. Ballard, 11 Rich. (S. C.) 178; Hancock v. Haile (Tex. Civ. App.) 171 S. W. 1053; Stannard v. Burns' Adm'r, 63 Vt. 244, 22 Atl. 460; Sheltman v. Taylor's Committee, 116 Va. 762, 82 S. E. 698. 35 Civ. Code Cal., § 38; Rev. Civ. Code Mont., § 3595; Rev. Civ. Code N. Dak., 4018; Rev. Civ. Code S. Dak., § 20; Rev. Laws Okl. 1910, § 888; Rev. Civ. Code Idaho, § 2606. 37 by an extension of this rule, when the promissory note of an insane person was given for necessaries supplied to him, or for money used for the protection and benefit of his estate, furnished him in good faith and without knowledge of his insanity, it may be enforced to the extent of the value of the consideration so furnished.36 In applying this rule, the term "necessaries" is not to be taken in too narrow a sense. It includes more than food, clothing, and shelter. It may cover the expense of legal proceedings which are necessary for the protection of the insane person himself or of his estate. And so, a physician who renders necessary medical services to a lunatic or his family may recover a reasonable fee therefor." And where a person has advanced money for the treatment of an insane married woman, whose husband was unable to provide medical care for her, on the credit of a bequest which he was informed would be made, and which afterwards was made, he may recover the advancement from the bequest.39 And the property of an insane person, especially when in the custody of a court, will not be applied to the payment of his general indebtedness, as distinguished from claims for his present maintenance, until a sufficient fund is set aside for the support of the lunatic and his family." The tendency of the modern decisions is to broaden out the rule above stated, and to refuse rescission or cancella 36 Hosler v. Beard, 54 Ohio St. 398, 43 N. E. 1040, 35 L. R. A. 161, 56 Am. St. Rep. 720; McCormick v. Littler, 85 Ill. 62, 28 Am. Rep. 610; First Nat. Bank v. McGinty, 29 Tex. Civ. App. 539, 69 S. W. 495. Contra, see Davis v. Tarver, 65 Ala. 98; Milligan v. Pollard, 112 Ala. 465, 20 South. 620. 37 In re Meares, L. R. 10 Ch. Div. 582; Williams v. Wentworth, 5 Beav. 325; Ferguson v. Fitze (Tex. Civ. App.) 173 S. W. 500. 38 Smith's Committee v. Forsythe, 28 Ky. Law Rep. 1034, 90 S. W. 1075. In the absence of any statute regulating the subject, an insane person cared for in a county insane asylum, having property, is liable to the county for board, care, and medical attention, as his relatives would be were he a pauper. See Dandurand v. Kankakee County, 196 Ill. 537, 63 N. E. 1011; Simons v. Van Benthuysen, 121 Mich. 697, 80 N. W. 790; Camden County v. Ritson, 68 N. J. Law, 666, 54 Atl. 839; McNairy County v. McCoin, 101 Tenn. 74, 45 S. W. 1070, 41 L. R. A. 862. 39 In re Renz, 79 Mich, 216, 44 N. W. 598. 41 tion of any ordinary contract or conveyance of an insane person, if it is shown to be fair, reasonable, based upon an adequate consideration, and beneficial to the afflicted person, although, of course, inadequacy of consideration or any misrepresentations as to value of the subject-matter will be held fatal to such a contract.42 Thus, if one enters into a contract with a lunatic without knowing of his mental condition, and in pursuance of the contract renders him important services, whereby he is greatly benefited, though the contract be voidable, yet the party rendering the services is entitled to just and reasonable compensation. So, where the defendant, acting on the advice of counsel, borrowed money from the plaintiff which he prudently applied to the payment of liens on his estate, and in subsequent proceedings it was adjudged that he was a lunatic at the time when the loan was made, it was held that this was no defense in an action for the recovery of the money loaned." 43 44 41 National Metal Edge Box Co. v. Vanderveer, 85 Vt. 488, 82 Atl. 837, 42 L. R. A. (N. S.) 343, Ann. Cas. 1914D, 865; Taylor v. Superior Court, 30 R. I. 560, 76 Atl. 644. The learned author of Wharton on Contracts, after referring to the absurd rule of the common law, as enunciated by Lord Coke, that no man should be allowed to plead his own lunacy or imbecility because it would "stultify" him, and pointing out that the abandonment of this doctrine was followed by the general adoption of a rule equally indefensible and going to the other extreme, namely, that all contracts of a lunatic were void, pertinently remarks: "It is probable that nothing more was meant by this than that, when a man is transparently an idiot, no contract made by him will be enforced. It is certain that it was never meant that, when there is nothing in the conduct and appearance of a party to notify those dealing with him that he is insane, and when such parties have no notice of his insanity, their bargains with him, no matter how much they may be to his advantage, are void. That a person apparently sane, for instance, should lease a house and occupy it and then be protected from payment, the bargain having been fair and advantageous to him, or that, under similar circumstances he should buy goods and use them, and then be relieved from paying for them, never could have been intended. But in the rebound from the position of Coke, it was natural that expressions should be dropped to the effect that lunacy of all kinds should in all cases destroy capacity to contract." 1 Whart. Contr. § 100. But see Bayne v. Stratton, 131 Ky. 494, 115 S. W. 728. 42 Mathews v. Nash, 151 Iowa, 125, 130 N. W. 796. 48 Ballard v. McKenna, 4 Rich. Eq. (S. C.) 358; Hallett v. Oakes, 1 Cush. (Mass.) 296; Blaisdell v. Holmes, 48 Vt. 492. 44 Appeal of Kneedler, 92 Pa. 428. |