Mere weakness of intellect, not so great as to render the person non compos mentis, will not of itself affect the validity of a contract.59 If, however, the other party has taken advantage of such weakness, and by the use of fraud and undue influence has made an unfair contract, it will be set aside.60
Personal Influence Absent - Advantage Taken of Another's Necessities and Distress The doctrine of undue influence has been extended to a class of cases from which the element of personal influence is altogether absent. They all appear to possess these common features, namely, that the promisor incumbers himself with heavy liabilities for the sake of a small gain, or, at any rate, an inadequate present gain; and the promisee takes advantage either of the improvidence and moral weakness, or else of the ignorance and unprotected situation of the promisor, or, as stated in the black-letter text, takes an unfair advantage of the promisor's weakness of mind,61 or of his necessities and distress.62 The law has attempted by statute in some jurisdictions, as in case of the usury laws, to guard against advantage being taken against persons in such a situation, and courts of equity at one time adopted a rule that purchasers of any reversionary interest might always be called upon to show that they had given full value for their bargains, so that they might not take advantage of a man's present necessities to deprive him of his future estates without reasonable return.63 The usury laws do not exist in all juris-dictions, and the rule as to reversionary interests has been, to a great extent, abrogated by statute in England, and is recognized in very few cases with us. If,however, a man, even in the absence of usury laws, takes advantage of the present poverty of an expectant heir to extort from him an exorbitant and ruinous rate of interest, he is liable to have the bargain set aside, and to be remitted to his claim for the amount of money he has actually advanced, with the current rate of interest upon it.64 "In ordinary cases," it is said. "each party to a bargain must take care of his own interest, and it will not be presumed that undue advantage or contrivance has been resorted to on either side; but in the case of 'the expectant heir,' or of persons under pressure without adequate protection, and in the case of dealings with uneducated, ignorant persons, the burden of showing the fairness of the transaction, is thrown on the person who seeks to obtain the benefit of the contract." 65 The court will look to the reasonableness of the transaction under all the circumstances of the case; and if it appears that one has taken advantage of the unprotected condition of the other to drive a hard bargain, whether such condition arose from mental or moral weakness or ignorance, or from present necessity and distress, the transaction will not be allowed to stand.66
58Zeigler v. Illinois Trust & Savings Bank, 245 I11. 180, 91 N. B. 1041, 28 L. R. A. (N. S.) 1112, 19 Ann. Cas. 127. And see Fjone v. Fjone, 16 N. D. 100, 112 N. W. 70. See "Contracts," Dec. Dig. (Key-No.) § 96; Cent. Dig. §§ 441, 1169.
59 Ante, p. 224.
60 Norton v. Norton, 74 Iowa, 161, 37 N. W. 129; Tracey v. Sacket, 1 Ohio St 54, 58, 59 Am. Dee. 610; Rider v. Miller, 86 N. Y. 507; Morton's Adm'r v. Morton (N. J. Ch.) 8 Atl. 807; Oakey v. Ritchie, 69 Iowa, 69, 28 N. W. 448; Allore v. Jewell, 94 U. S. 506, 24 L. Ed. 260; Griffith v. Godey, 113 U. S. 89, 5 Sup. Ct 383, 28 L. Ed. 934; Fishburne v. Ferguson's Heirs, 84 Va. 87, 4 S. E. 575; Moore v. Moore, 56 Cal. 89; Rippy v. Grant, 39 N. C. 443; Churchill v. Scott, 65 Mich. 485, 32 N. W. 737; Zeigler v. Shuler, 87 S. C. 1, 68 S. E. 817; Foote v. De Poy, 126 Iowa, 366, 102 N. W. 112, 68 L. R. A. 302, 106 Am. St. Rep. 365 (mental weakness from age); Miller v. Sterringer, 66 W. Va. 169, 66 S. E. 228, 25 L. R. A. (N. S.) 596 (mental weakness from liquor furnished by other party). See "Contracts," Dec. Dig. (Key-No.) ( 96; Cent. Dig. §§ 441, 1169.
61 Selden v. Myers, 20 How. 506, 15 L. Ed. 976. See "Contracts," Dec. Dig. (Key-No.) §§ 96, 99; Cent. Dig. §§ 441, 448, 1169.
62 Moore v. Moore. 81 Cal. 195, 22 Pae. 5S9, 874; Wooley v. Drew, 49 Mich. 290, 13 N. W. 594; McCants v. Bee, 1 McCord, Eq. (S. C.) 383, 16 Am. Dec. 610. See "Contracts," Dec. Dig. (Key-No.) §§ 96, 99; Cent. Dig. §§ 441, 448, 1169.
63 Chesterfield v. Jansen, 2 Ves. 125; 1 White & T. Lead. Cas. Eq. 428; Jenkins v. rye, 12 Pet. 241, 9 L. Ed. 1070. See "Contracts," Dec. Dig. (Key-No.) § 96; Cent. Dig. §§ 441, 1169; "Cancellation of Instruments," Dec. Dig. (Key-No.) §§ 45, 47; Cent. Dig. §§ 100-108.
64Aylesford v. Morris, 8 Ch. 484; Anson, Cont. (4th Ed.) 169. And see cases cited in note 66, infra. The mere fact, however, that exorbitant interest is charged does not show that the contract is unconscionable. Whittier v. Collins, 15 R. I. 44, 23 Atl. 39. Where there is no actual fraud, and no fiduciary relation between the purchaser of a reversionary interest and his vendor, mere inadequacy of consideration is not sufficient to avoid the sale unless it is so great as to shock the moral sense. Mayo's Es'r v. Carrington'a Ex'r, 19 Grat. (Va.) 74; Cribbins v. Markwood, 13 Grat (Va.) 495, 67 Am. Dec. 775. And see Parmelee v. Cameron, 41 N. Y. 392; Davidson v. Little, 22 Pa. 245, 60 Am. Dec. 81. See "Contracts" Dec. Dig. (Key-No.) § 96; Cent. Dig. §§ 441, 1169; "Reversions," Dec. Dig. (Key-No.) § 7; Cent. Dig. § 7.
65 O'Rorke v. Bolingbroke, 3 App. Cas. 823. See "Contracts," Dec Dig. (Key-No.) §§ 96, 99; Cent. Dig. §§ 441, 448, 1169.
Another case in which this rule has been applied is in the case of a sale of the equity of redemption by a mortgagor to the mortgagee. The sale may be avoided by the mortgagor if any undue advantage was taken of his necessities.67