The opinion of the court was delivered by
Johnston, J.:
According to the allegations of the petition, the plaintiff was not entitled to the relief prayed for. He does not ask to set aside the contract and the proceedings under which the defendant obtained the land, but he virtually seeks a confirmation of these by asking for the difference between the price paid by the defendant for the land at the judicial sale, and the sum which it is alleged to have been then actually worth. From the allegation concerning the bona fide character of the indebtedness, we must assume that the original transaction between Leavitt and Files was free from fraud or unfairness. Leavitt borrowed $975 from Files on December 1,1881, more than two years before he was adjudged to be insane. He *30then gave a note payable in one year from date, with interest at 10 per cent., and executed a mortgage upon a tract of land which he owned, to secure the payment of the money. Default being made, the mortgage was foreclosed in May, 1883, and the land was not sold under the decree of foreclosure until January 24, 1884. Leavitt was not adjudged to be of unsound mind until all these proceedings had taken place, nor until May 16, 1884. The proceedings to recover the money, and for the foreclosure as well as in selling the property to satisfy the debt, appear to have been orderly and deliberate. There is no allegation that Files took or sought to take any advantage of Leavitt in any of the proceedings. The sale was not made for more than eight months after the order directing the sale had been made. It was then duly advertised and the land sold to the defendant Files, but there is no intimation that he attempted to stifle competition, or that the sale was not openly and fairly conducted in all respects. There is an allegation that Leavitt was insane and utterly incapacitated to make a contract, and that the defendant had knowledge of his incapacity; but this averment is coupled with one alleging the fairness and good faith of the defendant. Generally speaking, the contract of one insane is invalid, for the reason that the rational consenting mind is lacking. The rules respecting such contracts and the liability thereon, were quite fully considered and stated in Gribben v. Maxwell, 34 Kas. 8. That was an action to set aside a conveyance made by an insane person before an inquisition and finding of lunacy. The party with whom he dealt had no knowledge of his incapacity, and made the purchase in good faith and for a reasonable consideration, and it was decided that before the conveyance could be set aside, the consideration received must be returned, or offered to be returned. The result of that consideration and the authorities there cited is, that a contract made as this one was may be set aside if the parties can be placed in statu quo; but where it is entered into in good faith and without taking advantage of the lunatic, there should be a tender or an offer to restore the amount paid. It would be inequitable and un*31just to allow him to recover the property and to retain the price paid by the purchaser besides. No offer to return the amount paid by the defendant was made. Indeed, as has been stated, the plaintiff does not repudiate the contract, or seek to have it set aside. He attacks the contract on account of his ward’s incapacity, but does not ask that it be annulled. He both repudiates and confirms. He would have the contract and proceedings held sufficient to give the defendant a good title to the land, but too defective to relieve him from liability to Leavitt’s estate. In effect, the plaintiff asks the court to modify the contract of purchase made by the defendant, by requiring him to pay $1,150 more than he agreed to pay, and when the contract is so modified, to enforce it. He seeks to compel the making and enforcement of a new and entirely different contract from that made by the parties, and this although the contract has been fully executed. This-cannot be done. No obstacle seems to lie in the way of a redemption of the land, as it was sold to, and so far as the record shows, is yet owned by, the defendant. This is the plaintiff’s remedy, and in such an action the rights of the insane person may be fully protected without doing injustice to the defendant, who confessedly dealt fairly and in good faith with him.
The judgment will be affirmed.
All the Justices concurring.