William Strong

“ Yet a lunatic, equally with an infant, is confessedly under the protection of courts of law as well as courts of equity. The contracts of the latter, it is true, are generally held to be only voidable (his power of attorney being an exception) . Unlike a lunatic, he is not destitute of reason. He has mind, but it is immature, insufficient to justify his assuming a binding obligation. And he may deny or avoid his contract at any time, either during his minority or after he comes of age. ”

“ The Circuit Court instructed the jury that a lunatic, or insane person, being of unsound mind, was incapable of executing a contract, deed, power of attorney, or other instrument requiring volition and understanding, and that a power of attorney executed by an insane person, or one of unsound mind, was absolutely void. ”

“ The doctrine that a lunatic's power of attorney is void finds confirmation in the analogy there is between the situation and acts of infants and lunatics. Both such classes of persons are regarded as under the protection of the law. But, as already remarked, a lunatic needs more protection than a minor. The latter is presumed to lack sufficient discretion. Reason is wanting in degree. With a lunatic it is wanting altogether. ”

“ He said:
'The authorities show distinctly that the feoffment and livery of a lunatic or madman are not void, but voidable. . . . So far the argument made for the defendant in error seems unassailable. The defect in it is that it fails to prove the deed of bargain and sale, by which he holds, to be equivalent in all respects to a feoffment. . . . At common law the feoffment of a madman, as shown by the argument, is only voidable. ”

“ It must be admitted, however, that there are decisions which have treated deeds and conveyances of idiots and lunatics as merely voidable, and not void. In Beverly's Case, [22] which was a bill for relief against a bond made by Snow, a lunatic, it was resolved that every deed, feoffment, or grant, which any man non compos mentis makes, is avoidable, and yet shall not be avoided by himself, because it is a maxim of law that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify himself and disable his own person. ”

“ In the inferior court the judge had charged the jury that 'to constitute such unsoundness of mind as should avoid a deed at law, the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life,' and refused to charge that the unsoundness of mind must amount to idiocy. ”

“ If a man has no reason, there can be no 'assent of two or more minds,' which is essential to every contract. The p*20 act performed by a person having no reason is absolutely void. It may not be apparent that the act was void until the lunacy is proved, but when it is proved to have existed when the act was done, then the act was void ab initio.
This observation, it may be added, if true, disposes of the suggestion, made below as here, that we should have proceeded in equity.
[The other assignments of error were then discussed in behalf of the defendant in error.] ”

“ As to the authorities cited on the other side, while we contend that the deed of a lunatic is absolutely void, we also admit that the privilege of asserting that it is void, is, like infancy, a personal privilege, and can only be enjoyed by the lunatic and those who claim under him. ”

“ Our case is exactly this one, where Sir William says that the lunatic's grant may be avoided.
Again.-If Blackstone's statement of the law were true, there is a distinction to be drawn between a deed and a power of attorney. The latter will be void when the former is not. Thus the deeds of infants are not void, but voidable. If the infant do not dissent within a reasonable time after coming of age the deed cannot be avoided. A warrant of attorney has, however, always been held absolutely void. ”

“ The only one which has any plausibility, and which needs particular notice, is that which complains of the refusal of the court to permit a medical witness to give his opinion respecting the sanity of John Hall at the time when he signed the power of attorney, basing his opinion upon the facts and symptoms stated in the depositions read at the trial. The witness was, however, allowed to give his opinion upon the testimony adduced by the plaintiffs. The record does not show fully what were the facts stated in the depositions, nor whether they were established by uncontradicted evidence. ”

“ Leach, that while the feoffment of an idiot, or lunatic, is only voidable, his deed, and especially his power of attorney, are wholly void. And now by act of Parliament, 7th and 8th Vict., ch. 76, § 7, his conveyance by feoffment, or other assurance, is placed on the same footing with his release or grant. ”

“ As the lot granted to Hall was within this description, the ordinance assured to him whatever right and title the city then had, and confirmed, so far as the city could confirm it, the alcalde's grant. ”

“ Intermediate between these acts was a third one, that of April 11th, 1855, [5] to amend an act entitled 'An act defining the time for commencing civil actions,' passed April 22d, 1850. This intermediate act provided that
'No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained unless it appear that the plaintiff, his ancestor, or grantor, was seized or possessed of the premises in question, within five years before the commencement of such action ”

“ Leach; and in his Commentaries, [29] while admitting that the law was otherwise prior to the reign of Henry VI, asserted the doctrine that the conveyances of idiots and persons of non sane memory, as well as of infants and persons under duress, are voidable, but not actually void. ”