Same - Ratification And Avoidance

118. The voidable contract of a person non compos mentis may be ratified or avoided by himself when sane, or by his guardian during insanity, or by his representatives or heirs after his death.

119. The right to disaffirm is personal, and neither the other party nor third persons can avoid it.

120. In a few jurisdictions, although the other party did not know of the insanity and the contract was fair, the consideration received by the insane person need not be returned as a condition precedent to avoidance if he is unable to return it.

121. The contract can be avoided as against bona fide purchasers.

The voidable contracts of a person non compos mentis may be ratified or disaffirmed by him when he becomes sane, or during a lucid interval;40 or, during the continuance of his infirmity, by his committee or guardian;41 or, after his death, by his personal representative,42 or his heirs.43 The privilege is personal to the insane person, or those who thus represent him; and neither the other party to the contract nor third persons can avoid it.44 Ratification or disaffirmance need not be in express words, but may be by conduct, as in the case of ratification or disaffirmance by a person of a contract made during infancy.45 And a contract once duly ratified may not afterwards be disaffirmed.46

40 Allis v. Billings, 6 Metc. (Mass.) 416, 39 Am. Dec. 744; Gibson v. Soper, 6 Gray (Mass.) 279, 66 Am. Dec. 414; Arnold v. Iron Works, 1 Gray (Mass.) 434; Turner v. Rusk, 53 Md. 65. See "Insane Persons," Dec. Dig. (Key-No.) § 79; Cent. Dig. §§ 138, 141.

41 Moore v. Hershey, 90 Pa. 196; Halley v. Troester, 72 Mo. 73; McClain v. Davis, 77 Ind. 419. See "Insane Persons," Dec. Dig. (Key-No.) § 79; Cent. Dig. §§ 138, 141.

42Beverley's Case, 4 Coke, 123b; Campbell v. Kuhn, 45 Mich. 513, 8 N. W. 523, 40 Am. Rep. 479; Schuff v. Ransom, 79 Ind. 458; Orr v. Mortgage Co., 107 Ga. 499, 33 S. E. 708. See "Insane Persons," Dec Dig. (Key-No.) § 79; Cent. Dig. §§ 188, 141.

43HOVEY v. HOBSON, 53 Me. 451, 89 Am. Dec. 705, Throckmorton, Cas. Contracts, 149; Allis v. Billings, 6 Metc. (Mass.) 415, 39 Am. Dec. 744; Schuff v. Ransom, 79 Ind. 458. See "Insane Persons," Dec. Dig. (Key-No.) §§ 67, 79; Cent. Dig. §§ 103, 138, 141.

44Carrier v. Sears, 4 Allen (Mass.) 336, 81 Am. Dec. 707; Allen v. Berry-hill, 27 Iowa. 534. 1 Am. Rpp. 309: ante, p. 228, note 28. Contra. Burke v. Allen, 29 N. H. 106, 61 Am. Dec. 642. Sureties are liable on a note executed by an insane person. Lee v. Yandell, 69 Tex. 34, 6 S. W. 665. Only privies in blood or legal representatives can avoid. Hunt v. Rabitoay, 125 Mich. 137, 84 N. W. 59, 84 Am. St. Rep. 563. See "Insane Persons," Deo. Dig. (Key-No.) § 79; Cent. Dig. §§ 138, 141.