It seems a natural consequence of lunacy that any transaction which requires actual mutual assent cannot be effectually made by a lunatic. As was said in a decision of the Supreme Court of the United States: "The fundamental idea of a contract is that it requires the assent of two minds; but a lunatic or a person non compos mentis has nothing which the law recognizes as a mind." 2 And though the English law of contracts during most of its history, has concerned itself rather with the acts of the parties than with their views as to the meaning of their acts, it has been true from an early day and still is true that no act can bind a party unless it can be regarded as his act,3 and whether the motions of a lunatic could be so regarded seemed more than doubtful. Accordingly it was decided in early English cases that a lunatic could not execute a deed,4 nor a bond,6 nor indorse a bill of exchange.6 And so a family settlement made by a lunatic was set aside, although it was reasonable and for the convenience of the family.7 In accordance with this view it is held in many cases, especially those of not very recent times, that a lunatic's contract8 or deed 9 is absolutely void. It should be noticed,
2 Dexter v. Hall, 15 Wall. 9, 21 L. Ed. 73.
3 See infra, Sec. 1488.
4 Yates v. Boen, 2 Strange, 1104.
5 Faulder v. Silk, 3 Campb. 126.
5 Alcock v. Alcock, 3 M. & Gr. 268.
7 Clerk v. Clerk, 2 Vera. 323.
8 Edwards v. Davenport, 4 McCrary, 34; Henry v. Fine, 23 Ark. 417; Caulk-ins v. Fry, 36 Coon. 170; American Trust & Banking Co. v. Boone, 102 Ga. 202, 20 8. E. 182, 40 L. R. A. <N. S.) 250; Reinakopf v. Rogge, 37 Ind. 207; Atwell v. Jenkins, 163 Mass. 362, 40 N. E. 178, 28 L. R. A. 694, 47 Am. St. Rep. 463; Burke v. Allen, 29 N. H. 106, 61 Am. Dec. 642; Berkley v. Cannon, 4 Rich. L. 136; Hunter v. Tolbard, 47 W. Va. 258, 34 S. E. 737; Bursinger v. Bank of Waters town, 67 Wis. 75, 30 N. W. 290, 58 Am. Rep. 848. See also Chicago, etc., Ry. v. Lewis, 109 111 120.
9 German Savings Soc. v. Lashmutt, 67 Fed. 399; Thompson v. New England Co., 110 Ala. 400, 18 So. 315, 55 Am. St. Rep. 29; Dougherty v. Powe, 127 Ala. 677, 30 So. 524; Wil-kine v. Wilkinson, 129 Ala. 279, 30 So. 578; Van Deuscn v Sweet, 51 N. Y. 378; Sander v. Savage, 75 N. Y. App. Div. 333 (but see Blin v. Schwara, 177 N. Y. 252, 69 N. E. 542, 101 Am. St. Rep. 806); Farley v. Parker, 6 Or. 105, 25 Am. Rep. 504; Estate of Deailver, 5 Rawle, 111; Rogers v. Walker, 6 Pa. St. 371, 47 Am. Dec. 470. And see Dexter v. Hall, 15 Wall. 9, 21 L. Ed. 73; Jacks v. Estee, 139 Cat. 507, 73 Pac. 247; Edwards v. Davenport, 4 McCrary, 34; Waller v. Julius, 68 Kan. 314, 74 Pac. 167; Valpey v. Res, 130 Mass. 384; Brig-ham v. Fayerweathcr, 144 Mass. 48,10 N. E. 735.
however, that the word "void" is used with very different meanings by judges and law writers;10 and it may be doubted whether most of the courts which have said that the acts of a lunatic are void would follow that doctrine to its logical conclusion. Thus: If the contracts of a lunatic are void they cannot be ratified; third persons may effectually deny the title of an insane person's grantee; and a sane party to a bargain with a lunatic may repudiate it although the lunatic has performed on his side, or is ready to perform. That all these consequences would be admitted by courts which speak of the contracts of a lunatic as void is at least not clear.
The somewhat illogical doctrine applied by some courts to infants,11 holding that an infant's power of attorney is void, though infants' contracts in general are voidable only, has been suggested by a few courts as applicable also to contract of an insane person.12 There seems no reason, however, to distinguish a power of attorney from any contractual agreements. It should be voidable to the same extent and no further than other agreements of an insane person.13 It is occasionlly said also that a contract with an insane person is void if his condition is known to the contracting party.14 But the word void in such cases must be used as meaning void at the option of the insane person, or his representatives, that is, voidable. It is doubtless a fraud to enter into a contract with an insane person knowing his condition.15 It should be observed, however, that the discharge of a contract by performance to the promisee does not involve the formation of a new contract, and, therefore, a repayment by a bank to an insane person of money deposited by him when sane is a valid discharge though made upon check or order drawn by the depositor after he became insane;16 and the result is the same where payment is made on such an order to one whom the depositor while sane had held out as his agent.17
10See Blinn v. Schwara, 177 N. Y. 262, 259, 69 N. E. 542, 101 Am. St. Rep. 806; State v. Richmond, 26 N. H. 232, 239; Markby, Elements on Law (3d ed.)Sec.Sec. 274, 651.
11See supra, Sec.227.
12Plaster v. Rigney, 97 Fed. 12, 38 C. C. A. 25; Clay v. Hammond, 199 I11. 370, 65 N. E. 352; Wolcott v. Insurance Co., 137 Mich. 309, 100 N. W. 560; Eaton v. Eaton, 37 N. J. L. 108.
13 See Williams v. Sapieha, 94 Tex. 430, 61 S. W. 115.
14 Henry v. Fine, 23 Ark. 417; Bethany Hospital Co. v. Philippi, 83 Kans. 64, 107 Pac. 530, 30 L. R. A. (N. S.) 194; Matthiessen v. McMahon's Adm'r, 38 N. J. L. 536; Lincoln v. Buck-maater, 32 Vt. 652.
15 Helbreg v. Schumann, 150 111. 12, 37 N. E. 99, 41 Am. St. Rep. 339; Fecal v. Guinault, 32 La. Ann. 91.