Gribben v. Maxwell

34 Kan. 8

Opinions

The opinion of the court was delivered by

Horton, C. J.:

T , “Snot06’ avoiced. As a general rule, the contract of a lunatic is void per se. The concurring assent of two minds is wanting. “They who have no mind cannot ‘concur in mind’ with one another; and as this is the essence of a contract, they cannot enter into a contract.” (1 Parsons on Contracts, 6th ed., 383; Powell v. Powell, 18 Kas. 371.) Notwithstanding this recognized doctrine, the decided cases are far from being uniform on the subject of the liability or extent of liability of lunatics for their contracts. An examination of the cases upon the subject shows that there is an irreconcilable conflict in the authorities. We think, however, the weight of authority favors the rule that where the purchase of real estate from an insane person is made, and a deed 0f conveyance jg obtained in perfect good faith, before an inquisition and finding of lunacy, for a sufficient consideration, without knowledge of the lunacy, and no advantage is taken by the purchaser, the consideration received by the lunatic must be returned, or offered to be returned, before the conveyance can be set aside at the suit of the alleged lunatic, or one who represents him.

Wright, C. J., in Corbit v. Smith, 7 Iowa, 60, thus states the law:

“ In the next place, a distinction is to be borne in mind between contracts executed and contracts executory. The latter, the courts will not, in general, lend their aid to execute where the party sought to be affected was at the time incapable, unless it may be for necessaries. If, on the other hand, the incapacity was unknown — no advantage was taken — the contract has been executed, and the parties cannot be put in statu quo — it will not be set aside.”

In Behrens v. McKenzie, 23 Iowa, 333, Dillon, J., said:

“But with respect to executed contracts, the tendency of modern decision is to hold persons of unsound mind liable in cases where the transaction is in the ordinary course of business, is fair and reasonable, and the mental condition was not known to the other party, and the parties cannot be put in statu quo.”

In Allen v. Berryhill, 27 Iowa, 534, it was decided that—

“Where a contract made by an insane person has been adopted, and is sought to be enforced by the representatives of such person, it is no defense to the sane party to show that the other party was non compos mentis at the time the contract was made.”