1 The cases in this country are somewhat contradictory. Seaver v. Phelps, 11 Pick. 304; Rice v. Peet, 15 Johns. 503; Fitzgerald v. Reed, 9 Sm. & M. 94, are contrary to the rule as laid down in Beavan v. M'Donnell. But in Beals v. See, 10 Barr, 60, the court seem to support it. In Loomis v. Spencer, 2 Paige, 158, the Chancellor said: "A court of equity ought not to interfere where the lunatic has actually had the benefit of the property, if the contract was made in good faith, without knowledge of the incapacity, and where no advantage has been taken of the situation of the party." But it is also held in this case that the parties must be replaced in statu quo. See Wait v. Maxwell, 5 Pick. 217; La Rue v. Gilkyson, 4 Barr, 375.

2 Beavan v. M'Donnell, 9 Exch. 309; Beals v. See, 10 Barr, 56; Price v. Berrington, 7 Hare, 394; 3 Mac. & G. 486; Molton v. Camroux, 2 Exch. 487; 4 ib. 17; Fitzhugh v. Wilcox, 12 Barb. 235; Dane v. Kirkwall, 8 C. & P. 679.

3 Beavan v. M'Donnell, 9 Exch. 309; La Rue v. Gilkyson, 4 Barr, 375; Loomis v. Spencer, 2 Paige, 158; Beals v. See, 10 Barr, 60.

4 Loomis v. Spencer, 2 Paige, 158; Molton v. Camroux, 2 Exch. 487; 4 ib. 17; Hall v. Warren, 9 Ves. 605.

§ 84. But the deed of a lunatic is only voidable, and not void; and in order to avoid it, on his restoration to his right mind, he must return the price paid, or the contract for its payment, if not paid. If he receive payment after the return of sanity, and gives no notice of his intention to disaffirm the conveyance, his ratification may be inferred.2 But in a late case in Massachusetts, it was deliberately held that an insane person, or his guardian, may bring an action to recover land of which a deed was made by him while insane, which deed has not since been ratified or affirmed, without first restoring the consideration to the grantee.3

1 Beavan v. M'Donnell, 9 Exch. 309.

2 Arnold v. Richmond Iron Works, 1 Gray, 434. But see Gibson v. Soper, infra, in which Arnold v. Richmond Iron Works was commented on. See also Moltoh v. Camroux, 2 Exch. 487; 4 ib. 17; Price v. Berrington, 3 Mac. & G. 486; Fitzhugh v. Wilcox, 12 Barb. 235.

3 Gibson v. Soper, 6 Gray, 279. In this case Thomas, J., said: " This is a writ of entry, brought for the demandant by his probate guardian, to recover a farm situated in Great Barrington in this county. The tenant pleads the general issue, and claims title under a deed of the demandant, dated July 25th, 1853, but delivered some time in November of that year. The demandant replies, that at the time of the making and of the delivery of the alleged deed he, the grantor, was an insane person.

"The tenant says, that at the time of the execution of the deed, and as the consideration therefor, the tenant executed and delivered to the demandant a contract in writing, by which among other things, he stipulated to pay the debts of said Gibson, consisting in part of incumbrances upon said real estate, to support said Gibson and his wife, to pay said Gibson an annuity for his life, and to pay certain sums of money to the children of Gibson. He then offered to prove that he had made payments towards said incumbrances, and upon the other debts of the demandant; that he had tendered to Henry Gibson, one of the children of the demandant, the sum stipulated to be paid him, and at the time fixed in the contract, though it had not been received by said Henry-; that he had paid to the demandant the sums agreed to be paid, and had supported the demandant and his wife, as the contract provided; and that he had paid interest upon the mortgages on the estate since the action was commenced; but he did not claim that such payment was by the authority or with the consent or knowledge of the guardian.

§ 85. The modern cases show a strong analogy between the responsibility of an infant and a lunatic upon their contracts.

"He contended that upon proof of the payments made, and of the performance of the contract on his part, the demandant could not maintain this action, without having offered, before its commencement, to make restitution; to repay to him the amounts so paid; to compensate him for his services rendered in this behalf; to surrender to him the contract, and to indemnify him against it; and that, no offer of restitution having been made, this action could not be maintained.

"The demandant then offered in writing to make such restitution and repayment, if any thing was due (which he denied), in such way and manner as the court should direct. But he contended that no offer of restitution was necessary before the commencement of the action, and that the evidence offered by the tenant was inadmissible.

"The tenant had been in the possession of the premises and in the receipt of the rents and profits since the deed.

"The presiding judge ruled, in substance, that such offer of restitution was not necessary before the commencement of the action.

"This ruling was, we think, clearly right. The tenant produces and relies upon his deed. The demandant says, that deed is voidable in law, that is, it may be avoided unless it has been ratified or affirmed. It has not been ratified or affirmed.

"The bringing of this action is an election to avoid it. Having shown that he was insane when the deed was made, and that the deed was therefore voidable, and having, by his guardian, elected to avoid it, but one question can arise, namely, Has the plaintiff, upon restoration to sound mind, or have his legal representatives ratified or affirmed the deed, that is, given it a validity, which, before and without such ratification or affirmance, it did not possess; which it could acquire only by ratification ?

"How far the probate guardian of an insane person could ratify a deed made by his ward, or what acts of the guardian would be evidence of such ratification, it is not necessary to consider; there being no evidence tending to show a ratification, either by the guardian or the ward. The only question presented in this part of the case is, whether, when a deed has been executed by an insane person, it is necessary for him to make restitution of the consideration before he or his guardian or heirs can bring a suit to avoid it.