CHAPTER XI INSANITY AND INTOXICATION § 254. Insanity as Ground for Rescission. Contracts and Deeds Voidable or Void. 255. 256. Liability for Necessaries and Contracts Beneficial to Lunatic. 257. Notice or Knowledge of Insanity. 258. Same; Rights of Third Persons Purchasing for Value. 259. Effect of Adjudication of Insanity. 260. Time of Making Contract or Conveyance. 261. Deed or Contract Made in Lucid Interval. 262. Test of Mental Capacity. 264. Mental Weakness Accompanied by Fraud or Undue Influence. 265. Mental Weakness and Inadequacy of Consideration. 266. Monomania; Fixed Particular Delusions. 267. Old Age and Senile Dementia. 268. Unconsciousness, Stupor, or Coma. 269. Obscuration of Faculties Immediately Preceding Death. 270. Effects of Violent Grief, Anxiety, or Excitement. 271. Eccentricity and Erratic Habits of Mind. 272. Impairment of Faculties Through Addiction to Drugs. 273. Physical Infirmities Not Affecting Mental Powers. 274. Effect of Restoration to Reason. 275. 276. 277. 278. Same; Ratification of Contract. Restitution or Restoration of Consideration. Intoxication as Ground of Rescission. Degree or Measure of Intoxication. 279. Intoxication Voluntary or Induced by Other Party. 281. Voidability of Contract; Ratification or Disaffirmance. 282. Restoration of Consideration. § 254. Insanity as Ground for Rescission.-In the case of an insane person, that is, one who is wholly unable from mental derangement to make a binding contract,-the law presumes fraud from the relative condition of the parties, the presumption being stronger or weaker according to the position of the parties with respect to each other; and if the other party to the contract had notice or knowledge of the existing insanity, his action in concluding a bargain with the insane person, knowing the disability, constitutes a constructive fraud which authorizes the courts to grant relief, even though there was no actual fraud or un due influence.1 But if the contracting party had no knowledge of the other's insanity, and dealt with him in entire innocence and good faith, and if, for this reason, the contract cannot be regarded as absolutely void but as voidable at most, still there remains the fact that an insane person cannot give that intelligent consent without which a valid contract cannot be formed, and hence, in this case also, the contract may be avoided or set aside on equitable terms. And the doctrine that where one of two innocent persons must suffer, the loss should fall on him who made the condition possible, has no application to cases where it is sought to set aside a deed on the ground of the insanity of the grantor, for an insane person cannot be held responsible for consequences which he could not understand or prevent. It may be remarked in passing that the absurd doctrine of the early common law, that a person could not be permitted to allege his own mental incompetence because that would "stultify" him, has long since been discarded.3 A contract, deed, or other transaction being voidable for the insanity of one of the parties, that party himself may rescind it or sue for its rescission on being restored to sanity, and is not chargeable with laches on account of his having acquiesced in the contract or failed to take measures against it during the continuance of his incompetency, or for a reasonable length of time after the recovery of his reason. If the insane person does not recover, or while his 6 1 Sprinkle v. Wellborn, 140 N. C. 163, 52 S. E. 666, 3 L. R. A. (N. S.) 174, 111 Am. St. Rep. 827. And see Clay v. Hammond, 199 Ill. 370, 65 N. E. 352, 93 Am. St. Rep. 146; Combs v. Combs, 23 Ky. Law Rep. 1264, 65 S. W. 13; Austin v. Bridges, 21 Ky. Law Rep. 694, 52 S. W. 966. 2 McKenzie v. Donnell, 151 Mo. 461, 52 S. W. 222. 3 "The earlier authorities of the English law held that a man should not be allowed to stultify himself by alleging his own lunacy or imbecility; but such a doctrine sounds more like the gibberish of a lunatic than like the decree of a humane and enlightened lawgiver. The maxim of the civil law, 'furiosus nullum negotium gerere potest, quia non intelligit quid agit,' expresses the sense of modern jurisprudence on the subject." 1 Daniel, Nego. Instr. (3d edn.) § 209. 4 Patton v. Washington, 54 Or. 479, 103 Pac. 60. Alston v. Boyd, 6 Humph. (Tenn.) 504. • Bushnell v. Loomis, 234 Mo. 371, 137 S. W. 257, 36 L. R. A. (N. S.) 1029. BLACK RESC.-43 incapacity still continues, rescission may be effected by his guardian or committee, if one has been appointed, or, where real property is involved, by his devisees or heirs at law." But whoever it is that seeks to set aside a contract on the ground of insanity must assume the burden of proving the existence of that disability. 8 If the transaction in question is regarded as absolutely void (and not merely voidable) on account of the insanity of a party, it may be that a court of law can afford the proper relief, and that there will be no necessity for asking the aid of equity. Thus, in Alabama, it is held that a deed made by a person who is completely and permanently deranged is entirely void, and if he is not in possession at the time of suit brought, those acting in his interest, or claiming title under him, cannot maintain a bill in equity for relief against the conveyance, since the law gives a complete and adequate remedy in the form of an action of ejectment. But deeds so made are not universally regarded as absolutely void, and generally speaking, where a business transaction of any kind is to be avoided on the ground of insanity of a party, the court of equity is the proper forum to grant relief, on a bill for rescission or cancellation of the contract or the deed, as the case may be.10 And one who takes a conveyance from a person whom he knows to be of unsound mind is not entitled to a tender of the price as a prerequisite to the avoidance of the instrument,11 nor is it necessary that the bill for cancellation should contain an offer or allege a readiness to return the consideration received.12 But incompetence by reason of insanity should be made the basis of a direct action for relief, and not of defense in a collateral Brigham v. Fayerweather, 144 Mass. 48, 10 N. E. 735; Young v. Blanchard, 165 Mich. 340, 130 N. W. 694. 8 Wray v. Wray, 32 Ind. 126. • Lewis v. Alston, 184 Ala. 339, 63 South. 1008; Boddie v. Bush, 136 Ala. 560, 33 South. 826; Letohatchie Baptist Church v. Bullock, 133 Ala. 548, 32 South. 58; Galloway v. Hendon, 131 Ala. 280, 31 South. 603; Wilkinson v. Wilkinson, 129 Ala. 279, 30 South. 578. 10 Luffboro v. Foster, 92 Ala. 477, 9 South. 281; Walton v. Malcolm, 264 Ill. 389, 106 N. E. 211, Ann. Cas. 1915D, 1021; Logan V. arsdall, 27 Ky. Law Rep. 822, 86 S. W. 981. rash v. Starbuck, 145 Ind. 673, 44 N. E. 543. proceeding. Thus, where a lunatic has given a conveyance of property, and his grantees have mortgaged it, and the committee of the lunatic has taken no steps to obtain a rescission of the conveyance, he cannot defeat the mortgage in an action brought to foreclose it.18 14 Applying these principles to various classes of transactions, it may be remarked in the first place that a deed, mortgage, or other conveyance made by an insane person may be set aside or canceled by decree of court, although it does not appear that any fraud or undue influence was exerted or that any unfair advantage was taken of his condition. And an exchange of property to which one of the parties was a lunatic, or a person of obviously deranged mind, is invalid.15 So, a promissory note made by a person who is insane is void in the hands of the original parties,1 except, perhaps, where it was given for the reasonable value of necessaries furnished to him or for another consideration, adequate in itself and beneficial to the insane person.1 Also it is held that a note signed by an insane man, although negotiable in form, is not within the rule of commercial law which protects negotiable paper in the hands of a bona fide purchaser for value against defenses to which it was 16 18 German Sav. Bank v. Wagner, 164 App. Div. 234, 149 N. Y. Supp. 654. 14 Maggini v. Pezzoni, 76 Cal. 631, 18 Pac. 687; Pinkard v. Smith, Litt. Sel. Cas. (Ky.) 331; Langley v. Langley, 45 Ark. 392; Riggan v. Green, 80 N. C. 236, 30 Am. Rep. 77; Dicken v. Johnson, 7 Ga. 484; Valpey v. Rea, 130 Mass. 384; Jacox v. Jacox, 40 Mich. 473, 29 Am. Rep. 547; Goodyear v. Adams, 52 Hun, 612, 5 N. Y. Supp. 275; Northwestern Mut. Fire Ins. Co. v. Blankenship, 94 Ind. 535, 48 Am. Rep. 185; New England L. & T. Co. v. Spitler, 54 Kan. 560, 38 Pac. 799; Curtis v. Brownell, 42 Mich. 165, 3 N. W. 936; Chew v. Bank of Baltimore, 14 Md. 299; Karrick v. Landon, 41 App. D. C. 416. The deed of an insane grantor may be set aside even as against the objection that it was made with intent to defraud third persons. Crawley v. Glaze, 117 Va. 274, 84 S. E. 671. 15 Halley v. Troester, 72 Mo. 73. 16 Allen v. Babcock, 1 Har. (Del.) 348; Ellars v. Mossbarger, 9 Ill. App. 122; Musselman v. Cravens, 47 Ind. 1; Taylor v. Dudley, 5 Dana (Ky.) 308; Schmidt v. Ittman, 46 La. Ann. 888, 15 South. 310; Hosler v. Beard, 54 Ohio St. 398, 43 N. E. 1040, 35 L. R. A. 161, 56 Am. St. Rep. 720; Moore v. Hershey, 90 Pa. 196. 17 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. bestow the whole of his property upon one favored child, and if substantial moral grounds for such partiality are shown to exist, such a gift will not be set aside in equity without the clearest and fullest proof of undue influence, imposition, or other fraud.136 And even if the distribution which a parent makes of his property among his children appears unreasonable or unjust, or if those entitled to receive his bounty have not been equally remembered, this is not alone sufficient to show any incapacity on his part or the exercise of undue influence or duress over him by those most favored.13 Even where a parent, old, infirm, and illiterate, strips himself of his entire fortune, to bestow it upon one of his children to the exclusion of all the rest, and so leaves himself entirely dependent on the charity of the donee, it does not necessarily follow that the transfer must be set aside. Such a case was before the courts in California, but the suit of the parent to vacate the transfer was denied, because it appeared affirmatively that the gift was made while she was in the possession of all her faculties, and with a full understanding of all the facts and of what the effect of the transaction would be, and in the execution of a purpose long entertained to reward the devotion and services of the donee, and that she was not the victim of any artifice, contrivance, or undue influence on his part.1 138 136 Kennedy v. Bates, 142 Fed. 51, 73 C. C. A. 237. See, supra, § 243. The natural influence of a child over his parent is not undue influence avoiding a deed, unless so employed as to confuse the parent's judgment or control his will. Alcorn v. Alcorn (C. C.) 194 Fed. 275. 137 Russell v. Carpenter, 153 Mich. 170, 116 N. W. 989; Mallow v. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; Hawthorne v. Jenkins, 182 Ala. 255, 62 South. 505, Ann. Cas. 1915D, 707. 138 Soberanes v. Soberanes, 97 Cal. 140, 31 Pac. 910. In this case it was said: "The facts found do not warrant the court in ascribing the deed in question to undue influence. It is apparent, if the facts stated be true, and they must be so regarded, that the plaintiff was not the dupe of the defendant's artifices, the victim of his contrivances, or in any way subjected to his sway. The defendant's position was one of high trust and confidence, binding him, both by honor and in law, not only to abstain from anything like craft or guile, but to be generous and fair, and his conduct should be ex amined with the greatest scrutiny; but there is no rule which |