27 Iowa 534 | Iowa | 1869
Lead Opinion
The case should be regarded, and will be treated, in settling the law applicable to it, as if it were in form, as it is in substance, an ordinary action upon the notes.
The subject of the contracts of insane persons was recently before the court in the case of Behrens v. McKenzie (23 Iowa, 333).
The general subject was quite fully examined at that time by the counsel who argued it, and by the court. It was remarked in the opinion delivered therein, that “ the decided cases are far from being uniform on the subject of the liability or extent of liability of persons of unsound mind for acts and contracts done and made -while in this condition.” * * * “ The state of the law is such as to allow us to decide this case upon principle.”
The conflicting and very unsatisfactory state of the authorities thus referred to is so fully exhibited in the separate opinion of our brother Cole (in whose conclusion, however, the other members of the court cannot
The peculiarity of the case now under consideration consists in the fact that the representative of the party alleged to be insane, and with whom the contract was made, is the party seeking to have it enforced. It is the sane party to the contract that makes defense, and the defense is that the other party to the contract was totally insane at the time it was entered into.
No such case, that is, no case where it was the sane party who set up as a defense that his adversary was insane, was referred to by counsel, nor is any such referred to among all those which have been so industriously and carefully collected by Mr. Justice Cole.
This circumstance is regarded as important, and as distinguishing the case from those in which it is the insane party who pleads his incapacity and seeks to prevent the sane party to the contract from enforcing it against him.
It is the opinion of the court, that justice and sound policy concur in requiring it to hold, as it does, that where a contract has been entered into (under circumstances which would ordinarily make it binding) by a sane person with one who is insane, and that contract has been adopted and is sought to be enforced by the representatives of the latter, it is no defense to the sane party merely to show that the other party was non compos mentis at the time the contract was made.
There are obvious reasons, founded on the justice and propriety of protecting those whom the visitations of providence have incapacitated from protecting themselves, against contracts which are discovered to be prejudicial to their interests.
Their incapacity to contract is a shield which the law places in their own hands to protect them, not a sword in the hands of others with which to cut down their rights.
No such reason occurs to us.
The reason advanced by the appellant is, that in law two minds must concur to make a contract; that where one of the parties is insane there are not two minds capable of contracting; hence there is and can be no contract: and, therefore, no liability by either party to the other thereon.
It cannot be denied that there is to the legal mind, prone to draw and often delighting to indulge in refined and acute distinctions, much that is plausible in the ground here assumed. But, after all, is that ground really tenable?
As applied to this case, the defendant says to the plaintiff: “ You cannot recover because you have no contract.” The plaintiff replies, “ But I have a contract: here it is: it consists in your own notes.” Now what does the defendant rejoin: “I admit you have my notes, but, though signed by me, they are not, in legal contemplation, my act, because you had no power to agree to take them.”
Is this rejoinder not subtle rather than substantial? In fact, the plaintiff has the promise or contract of the defendant, and, if fairly obtained, it ought to be no defense to a sane defendant, that the plaintiff’s mind was not sound at the time the contract was made.
The objection relied on by the defendant is one of the many difficulties which have arisen out of the use of the words “void ” and “voidable,” and the uncertain extent of meaning attached to them.
Another illustration: delivery is essential to a deed, and acceptance essential to delivery, and there can be no acceptance without mental assent. This i? a general rule of law, and yet a deed made to an infant or to a lunatic, although there be no mental capacity capable of understanding the nature of the instrument, is valid. The law supplies or presumes the requisite assent to an act beneficial to the party; or it dispenses with it.
So here. "Where a person of unsound mind makes a contract which is beneficial to him, the law supplies or presumes the existence of the requisite capacity, or, for his protection, estops the other party to set up and sustain this objection.
The subject might be further elaborated, but it is scarcely needful to do so.
It is the opinion of the majority of the court, that the eighth count of the answer pleaded no sufficient defense, and this conclusion is strengthened by the consideration that it is not alleged therein that the incapacity of Allen was unknown to the defendant at the time the contract was made. If the contract was made by the defendant
The allegation of Downey’s insolvency is no defense to the present action. This is so obvious as not to require ..-any special notice.
Affirmed.
Dissenting Opinion
(dissenting). — The decision of this case rests, ip 'a large measure, upon the question whether the contracts of a lunatic are absolutely void or only voidable. The language of judges and text-writers upon 'this question has often been loose and indefinite; and there is an irreconcilable conflict in the authorities upon it. Indeed, the status of lunatics and their rights in court have undergone material changes. Under the ancient common law, lunatics were permitted to show their lunacy in defense of their alleged contracts. 2 Blacks. Com. 291. But later, and in the times of Edward III, and Henry YI, this right was denied, for the alleged reason that a man cannot know, in his sanity, what he did when he was insane. Beverley’s Case, 4 Rep. 123; Stroud v. Marhall, Cro. Eliz. 398; Cross v. Andrews, id. 622. And in an anonymous case (13 Vesey, 590), it was held that lunacy was no defense. ' And as late as 1821, Lord Ten terden said, in Brown v. Jodsell, 3 Car. and P. 30, that no person can be suffered to set up his own lunacy as a defense. But for the last century and more, it has generally been conceded that the lunatic may show his lunacy in defense; and this doctrine obtains and is well settled in this country. Rice v. Peet, 15 Johns. 503; Webster v. Woodford, 3 Day, 90; Lang v. Whidden, 2 N. H. 435; Mitchell v. Kingman, 5 Pick. 431; Bensell v. Chancellor, 5 Whar. 371.
I have said that the authorities are in conflict upon the question whether the contracts of a lunatic are void or only voidable. I now proceed to refer to some of the
In Barrett v. Buxton (2 Aiken’s Rep. 467), which is a well considered case, Prentiss, <7., in delivering the opinion of the court, evincing much learning and research, after referring to Rice v. Peet, and Webster v. Woodford, supra, says: “ These decisions are founded in the law of nature and of justice, and go upon the plain and true ground, that the contract of a party non comjpos mentis, is absolutely void and not binding upon him. * * * It is an elementary principle of law, that it is of the essence of every contract that the party to be bound should consent to whatever is stipulated, otherwise no obligation is imposed upon him. If he has not the command of his reason, he has not the power to give his assent, and is incapable of entering into a contract to bind himself. Accordingly, Pothier holds (vol. 1, c. 1, a. 4, s. 1), that ebriety, when it is such as to take away the use of reason, renders the person who is in that condition while it continues, unable to contract, since it renders him incapable of assent.”
And Chief Justice Gibson, in delivering the opinion of the Supreme Court of Pennsylvania, In the matter of Desilver (5 Rawle. 111), says: “At common-law, the feoffment of a madman, as shown by the argument, is only voidable, but his deed is absolutely void; so, that unless we can infer a legislative design to alter the common law in the latter particular, we must hold that his conveyance by bargain and sale is void, and unattended with the consequences attempted to be attributed to it.”
It is said by Dart, in his work on Yendor and Purchaser, marg. p. 4: “ It has, however, been held that a bargain and sale, lease and release, or other innocent conveyance by a lunatic, is absolutely void (2 Sug. on Pow., 7th ed. 179).” See also note 1 at bottom of p. 4, et seq.; and also pp. 45, 491 to 495. Mr. Parsons says: “ They who have no mind cannot agree in mind with another; and as this is the essence of a contract, they cannot enter into a contract. But there is more difficulty when we consider the case of those who are of unsound mind, partially and temporarily, and inquire how the question maybe affected by the cause of this unsoundness.” 1 Pars, on Contr. 310. See also Story on Contr. §§ 36 and 42. And, in a recent work on Infancy and Coverture, this language is used : “ It is regarded equally to the security of an infant, and more to his advantage, that by considering his acts voidable, we should give him the privilege of avoiding, which also implies that of affirming them, than that, by considering them void, we should lay him under the disability of acting at all, and place him on a level with idiots and lunatics. Tyler on In. and Cov. 49. See also pages 59 and 60.
It was also held in Jenners v. Howard (6 Blackf. 24), that “ if the mind he incapable of assenting, the law pro
On the other hand, Mr. Blackstone says : “ Idiots and persons of non-sane memory, infants and persons under. duress are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void.” Black. Com. book 2, p. 291. And Mr. Metcalf, in his recently published work on Contracts, says (p..80): “By the common law, a deed of land made by a person non compos, is voidable only, but not void; and therefore the deed of such a person conveys a seisin.” Mr. Parsons says : “ Before office found, the acts .of a lunatic are said to be voidable only; afterward, void. But we should have some doubt whether this distinction would be enforced so far as to say that the contract could not be ratified and confirmed by him after his sanity was restored.” Pars, on Notes and Bills, 151. Mr. Hilliard says : “The deed of a non compos is voidable by himself, his heirs or devisees. If he is under guardianship, it is absolutely void.” Hill on Beal Prop. (2d ed.) p. 408, § 16. But the same author says, in the same work (p. 271, § 46): “ It was the ancient doctrine, that an idiot or lunatic could not avoid his deed. But it is now settled, that the deed of an idiot is void, and also that of a lunatic, unless he assent to it on recovering his reason. And such deeds may be avoided by the heirs of the parties. But the feoffment of an idiot or lunatic is voidable, not void.” See also Edwards on Bills, 63, 64, 67, 68, and cases cited.
Lord Mansfield, in delivering the opinion of the court in Lysech v. Parsons (3 Burrows, 1794 [i. e.] 1805), says: “ Littleton, who writes with great accuracy and precision, puts them both (feoffment and deed) upon the same foot. He says : ‘ If, before the age of twenty-one, any deed, or feoffment, grant, release, confirmation, obligation or other writing be made by any of them, etc., all serve for nothing and may be avoided.” But Lord Mansfield further says, in the same opinion, that the comparison between an infemt and a man non compos mentis is not just. While, in Thompson v. Leach (3 Mod. 310), it is said that
Again, it is said in Fitzhugh v. Wilcox (12 Barb. S. C. 235), that “ the inquisition found and the decree thereon are notice to all the world, and operate as a judicial sentence upon the question. While In re Gangwere (14 Penn. St. 417), it is held that the inquisition is only pri/ma, facia evidence of lunacy, and even the petitioner for it may dispute the fact. So also in Hutchinson v. Sandt, 4 Rawle, 234. Very many other cases which have been examined by us might be quoted, showing further the same conflict. But it is doubtless true that in very many of the cases cited, and others which have passed under our observation, the word ‘ void ’ is used in the sense of ‘ voidable ’ and e converso. Although such is not the sense applied to it in many cases, as will be seen by reference to Thompson v. Leach, Gore v. Gibson, Barrett v. Buxton, In re Desilver, Rogers v. Walker, Allis v. Billings, Ingraham v. Baldwin, and other cases, supra.
There are many cases in the books which are made to rest upon their special circumstances, rather than upon the question whether the contracts of lunatics are void or only voidable. These may serve somewhat to illustrate the true principle underlying the contracts of persons non compos mentis. In the case of Baxter v. Earl of Portsmouth (13 E. C. L. R. 79), the defendant, after he had been found a lunatic under a commission of lunacy, employed coachmakers, who were ignorant of such commission, to manufacture and keep for his use certain carriages. The contract was performed by the plaintiffs, and the defendant had the use of the carriages pursuant to it; and it was shown that the carriages and the use defendant had of them were proper and suitable to his rank and position in life. Abbott, C. J.: “I am of opinion, that on this evidence the plaintiffs are entitled to
But in the case of Dane v. Lady Kirkwall (8 Car. and P. 687; S. C., 34 E. C. L. R. 958), the court seems to have gone a step further, and to have rested its judgment upon a more doubtful basis. The action was for the rent of a house under a written lease; the defense was insanity, and that the house was not a necessary, the defendant having another house in Albany street. Patterson, J., in summing up the case to the jury, said, inter alia. It is not sufficient that it be shown that Lady Kirkwall was of unsound mind, but you must be satisfied that the plaintiff knew it and took advantage of it. * * * * I think that here it appears, from plaintiff’s own witnesses, that Lady Kirkwall was of unsound mind and
The case of Moulton v. Camroux (2 Exch. 487) was an action by the heirs of a lunatic to recover money paid by him for the purchase of certain annuities. The lunatic was of apparently sound mind at the time of the purchase, and was not known by the society, of which he made the purchase, to be otherwise. “ Pollock, O. B. We are not disposed to lay down so general a proposition as that all executed contracts bona fide entered into must be taken as valid, though one of the parties be of unsound mind; we think, however, that we may safely conclude, that when a person apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bona fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterward be set aside either by the alleged lunatic or those who represent him.” The same case, on error, is reported in 4 Exch. 16, and affirms the same doctrine. To the same effect is Neill v. Morley, 9 Vesey, 478. The same doctrine, substantially, underlies the case of Beals v. See (10 Barr. 56), where the court held that an executed contract by a merchant for the purchase of goods cannot be avoided by proof of insanity at the time of the purchase, unless there has been a fraud committed on him by the vendor, or he has knowledge of his condition, and in delivering the opinion of the court in this ease Gibson, O. J., says: “The prayers for direction seem to have been founded on a notion, that, independent of every other consideration, a non corny os
But somewhat at variance with the doctrine of these last cases, is the. ruling in the case of Seaver v. Phelps (11 Pick. 304), which was an action in trover for a promis- ■ sory note pledged by the plaintiff, while insane, to the defendant. In delivering the opinion,Wilee, J\, holds, that the contracts of lunatics are not generally absolutely void, but only voidable; that a lunatic may avoid his contract although the other party was not apprised of his lunacy, or had no reason to suspect it from plaintiff’s conduct' or any other source, and did not overreach him or practice fraud or unfairness; that the distinction between contracts executed and executory was not material; that the case of Brown v. Jodull, supra, was founded on the old rule, that no one could plead his own disability, now modified and denied by Mitchell v. Kingman, 5 Pick. 431.
This case recognizes and re-affirms two points which seem to be the settled doctrine of Massachusetts, to wit: that the contracts of lunatics are voidable only and not void, and that a lunatic may plead his own disability. But when he treats as immaterial the questions of fraud or unfairness; or advantage of the known lunacy; or the distinction between executed and executory contracts, it goes beyond any previously settled rule of the courts of that State, or perhaps of any other.
The Supreme Court of Connecticut seems, quite indi rectly however, to recognize the doctrine that the contract of a lunatic is void. In Grant v. Thompson (4 Conn. 203), which was an action on a promissory note, the defense was insanity. The only question in the case arose upon admitting and excluding evidence, and the court says: “ This evidence, it is true, would not ratify or confirm a contract origvnall/y void, but it had a tendency to
In direct conflict with the case of Seaver v. Phelps, supra, upon the question of the material distinction between contracts executed and executory, and also as to fairness, knowledge of lunacy, etc., ai'e the cases of Beavan v. McDonnell, 9 Exch. 309, and Moulton v. Camroux, 4 id. 16. In the latter case, Patterson, J., says: “ This special verdict hardly shows that the ancestor was so lunatic as not to know what he was about when he purchased the annuities : but even if it did, the modern cases show that when that state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defense cannot prevail, especially when the contract is not merely executory, but executed in the whole or in part, and the parties cannot be restored altogether to their original position.” In full accord with this doctrine is the case of Carr v. Holliday, 5 Iredell’s Eq. 167. But the case of Sentance v. Poole (3 Car. and P. 1; S. C., 14 E. C. L. R. 179) holds that a negotiable note, in an unusual form, made by a lunatic, is bad, even in the hands of an indorsee. And Gibson v. Soper (6 Gray 279) holds that a lunatic may avoid his deed and recover the land without restoring the consideration received. While Carr v. Holliday (5 Ired. Eq. 167), supra, holds that a fair trade will not be rescinded, even at the instance of the lunatic, when the defendant cannot be put in statu quo.
I have examined with much care and interest a large number of cases besides the foregoing, but it is hardly necessary to quote further, or to state the substance of the cases. They only illustrate more in detail the want of harmony in the decisions, and the absence of any well-settled principle upon which they are rested. I merely add a few citations, which may serve as aids to those who
I now turn my attention to what seems to me to be the true principle upon which the rights of lunatics, and of parties contracting with them must rest. And since several of the cases cited, as did much of the arguments at bar, claim or assume the analogy between contracts of lunatics and infants, I will first examine the basis of the claimed analogy.
Infants have not a mature capacity; and while it is true that the degree or measure of their capacity in fact is widely different, extending from the faintest traces of reason manifested by an infant of very tender years, up to the almost or quite mature judgment of manhood, yet the common law, by its universal rule, holds all to be alike infants, who are under the age of twenty-one years, and throws the same mantle of protection over them, regardless of the measure of their capacity. The law recognizes them all as having some capacity. The precise basis upon which the law rests its guardianship or proteetion of infants or minors may not be very well settled or defined in the books. But that they are not bound in law by any contract they may make, if they
But since all infants do in fact (or are in law, presumed to) have some capacity, the law holds them capable of contracting. They are held to have sufficient capacity to give the mental assent requisite to a valid contract. But since they are of immature judgment and limited-capacity whereby they may be easily imposed upon and defrauded, the law, for their protection, allows them to plead their infancy in avoidance 'of their contracts, if they choose so to do. Doubtless, the true ground upon which
Now it seems to me that the analogy between the contracts of infants, having some capacity, and of lunatics, having no capacity, cannot be very strong. Infants are regarded by the law as having capacity sufficient to contract — that is, to conceive and manifest the assent essential to constitute an agreement. But a lunatic, having no capacity whatever — that is, no mind capable of conceiving or manifesting an assent — it is evident that h§ cannot make a contract; for the very elemental idea of a contract is the mutual assent of two or more persons. As it takes at least two persons to make a contract, and their assent must be mutual or reciprocal, it must follow that if either one does not possess the capacity to yield his or reciprocate the assent of the other, there can be no contract. If no contract, then neither party is bound, and of course the want of obligation is as available to the one party as to the other. The clear distinction and want of analogy, then, between the contracts of an infant and of a lunatic having no capacity is manifest at the outset; an infant binds himself, subject to his right, under the charity and guardianship of the law, to avoid it, and the contract binds the other party absolutely; while a lunatic,
Nor is the analogy by any means very striking between the contracts of infants and lunatics having some capacity — -partial lunatics. As regards infants, we have seen that they may avoid their contracts at their mere pleasure, and without showing any other fact than their infancy. But a lunatic, having some capacity or lucid intervals, must show, in addition to the fact of lunacy, the further fact that the other party took advantage of it to his prejudice. In the case of infants, the law presumes this advantage and prejudice, and does not require proof to show it, nor permit proof to rebut it.
But in some particulars the analogy is very apparent. An infant is bound to pay the fair value of necessaries furnished him; so is a lunatic. An infant may refuse to perform (or avoid) his contract; so may a lunatic, etc., etc.
The analogy between infants and lunatics is not sufficiently striking to justify the application of the law respecting infants to controversies involving the rights of lunatics. Let us then turn to the facts of this case. The count of the answer demurred to, avers “ that at the time the contract was attempted to be made, Allen was totally insane, in fact, and incapacitated to enter into such contract or authorize the same to be made.” If he was totally insane, of course he could not give that assent which is essential to a valid and binding agreement. He could not bind himself, nor could he bind the other party to him. Neither party, therefore, was bound; and although there was in form a contract, it was wanting in the vital element of mutual or reciprocal assent. And the contract being wholly executory, neither party can be required to perform. It must be noticed that we rest this decision upon the two facts, that Allen was “ totally
Where a contract is wholly executory, and neither party has parted with any thing of value, but simply a promise has been given for a supposed promise, there is no equity or rule of law which can demand its enforcement. The lunatic cannot demand it, because he has given nothing whatever for the promise he seeks to enforce — not even his own promise ; for by reason of his insanity his promise was no promise. The other party cannot demand it, because the lunatic, in the eyes of law, has made no promise to be enforced.
But if the contract had been fair, made in good faith, and fully executed, other considerations than that of mere capacity, intervene and affect the rights of the parties. The contract being fair and free from fraud, there is no basis for an action; for the element of damage, which is necessary to sustain any action, is wanting. The question of the knowledge of the party dealing with the lunatic, of his condition, it seems to me can only be material as a circumstance bearing upon the question of fairness or good faith of the transaction; although it is doubtless true that a court would much more readily set aside a transaction with a lunatic, made by a. party knowing him to be such, than if he was honestly supposed to be sane and capable; and this, because of the ground it would afford for basing the conclusion of fraud or unfairness in the transaction itself.
And in every case of contract with a lunatic, which has been executed in whole or in part, the fact that the
When the parties cannot be placed in statu qtco, and the contract is fair, was made in good faith, and without knowledge of the lunacy, it will not be set aside, even at the suit of the lunatic. And this, not because the contract was valid or binding, but because an innocent party, one entirely without fault or negligence', might, and in the eyes of the law would, be prejudiced by setting it aside. Both parties are faultless, and therefore stand equal before the law and in the forum of conscience. The law will not lend its active intferposition to effectuate a wrong or prejudice to either ; it will suffer the misfortune to remain where nature has cast it. But if there was any unfairness in the contract, or if the party dealing with the lunatic had knowledge of his lunacy, and obtained even a slight advantage by it, this would destroy the basis of equality, and justify,a court in setting aside the contract, notwithstanding the parties could not be placed in statu quo.
Nor, in my view, based, as I think, upon principle, can it be material whether the lunatic has been found to be such under a judicial commission or not, except so far as such finding may tend to establish the fact of lunacy, or the knowledge of it by the party contracting with him. And hence I do not approve or follow those cases which
And it also appears to me that the doctrine of the Supreme Court of Pennsylvania upon the question whether the deed of a lunatic is void or only voidable, is better founded upon both principle and logic than the doctrine of the Supreme Court of Massachusetts. Both courts agree that a feoffment by a lunatic is voidable only, and not void. And from this basis the Massachusetts courts conclude and hold that the deed of a lunatic is only voidable and not void ; while the Pennsylvania courts hold that the lunatic’s deed is absolutely void, and not voidable merely. This latter view finds its support in the fact that a feoffment was always accompanied by livery of seisin. The livery of seisin was performed by the feoffor and feoffee going upon the land, and the latter receiving it from the former. This ceremony or act transferred the actual seisin or possession to the transferee or feoffee, and whether the feoffor had the mental capacity to make
If the contract of a lunatic is void, as I hold it is, then it is clear that it could not be ratified by his committee, since a void act is no act, and hence incapable of being ratified. But aside from this, it has been held by the Supreme Court of Massachusetts, where the contracts of lunatics are held to be voidable only, that it was not competent for the guardian of a lunatic to avoid the lunatic’s contracts. Oliver v. Houdlett, 13 Mass. 239. And it has also been held that a guardian or committee could not by any act of his make the contract of a lunatic good. Fitzhugh v. Wilcox, 12 Barb. 235, supra. The averment of the plaintiff in his petition, that he, as guardian, has approved of said contract, since his appointment, cannot, therefore, help the plaintiff’s case.
There is still another view of this case, as presented by the record, which leads to the same result, and perhaps by a more direct and satisfactory line of reasoning. It appears, from the petition and exhibits, that the contract of sale upon which the suit is brought was made by B. D. Stephens, as attorney in fact for Allen, the lunatic, under a power of attorney executed at or about the time the contract was made, and while he is averred to have been totally insane. Now, it is very well settled that the power of attorney of an infant or lunatic is wholly void. Lane. O. J., in delivering the opinion of the Supreme Court of Ohio in the case of Lawrence v. McArtee (10
It is averred by an amended petition that the contract of sale sued upon was made pursuant to a previous agreement entered into at the time of, and in part consideration of, the purchase of the identical property in controversy by Allen of the defendant Berryhill. It is perhaps unnecessary for me to remark that my opinion of this case leaves the rights of the parties upon that hypothesis of facts wholly untouched.
What I hold is, that contracts which are wholly executory, made by persons totally insane, are so far void as that they will not be specifically .enforced, even at the suit of the lunatic against the sane party. I think the judgment should be reversed, but the majority think otherwise, and order the judgment Affirmed.