"The position taken by the tenant is, that the grantor or his guardian or heirs cannot avoid the grant, unless he or they place the grantee, in all respects, in the condition in which he was before the deed. It seems to us, upon careful consideration, that such is not the rule of law; that the resti-
Neither is ordinarily liable upon specialties, and both are liable for necessaries supplied bond fide.1 And the wife of a lunatic tution of the consideration of the deed or purchase-money is not a condition precedent to the recovery of the land.
"Upon strict principles of law, this is clear. The estate is shown to have been in the demandant within the twenty years. The tenant says he holds by a deed from the demandant. But the demandant is shown to have been incapable of making a valid deed. It wants the consenting mind. The tenant must then show ratification, - ratification by some act of the grantor upon his restoration to sound mind, or, possibly, by his guardian. But the grantor has remained insane ever since the deed; as incapable of confirming, as of making it. The guardian has done nothing to ratify or confirm the grant. The estate is still in the demandant; for if it has passed, it has passed by the deed of an insane man, never ratified or confirmed. That, in law, was impossible. The courts have certainly gone far enough in saying such an instrument was capable of being ratified or affirmed by acts in pais. They have never said that, though the grantor was incapable of making a deed, it should be valid against him, however insane, unless he ascertained what was the consideration paid to him, had the means of restoration, and offered to restore; and all this as a condition precedent to the recovery of that which he never had conveyed.
"No considerations of policy or equity require the adoption of such a rule. To say that an insane man, before he can avoid a voidable deed, must put the grantee in statu quo, would be to say, in effect, that, in a large majority of cases, his deed shall not be avoided at all. The more insane the grantor was when the deed was made, the less likely will he be to retain the fruits of his bargain, so as to be able to make restitution. If he was so far demented as not to know or recollect what the bargain was, the difficulty will be still greater.
"One of the obvious grounds, on which the deed of an insane man or an infant is held voidable, is not merely the incapacity to make a valid sale, but the incapacity prudently to manage and dispose of the proceeds of the sale. And the same incapacity, which made the deed void, may have wasted the price, and rendered the restoration of the consideration impossible. For example: One buys of an insane man his farm; he gives a note, good only because it has a good indorser; the insane grantor omits to have the indorser notified, and loses its value. Must he, before he can recover the estate, put the grantee in statu quo ?
"Upon the first impression, it may seem equitable that such restoration should be made, before the insane or infant grantor should recover his estate; but it is an impression which a little reflection removes. The law makes may pledge his credit for necessaries for herself, although her husband be confined in an insane asylum.1 But the responsithis very incapacity of parties their shield. In their weakness they find protection. It will not suffer those of mature age and sound mind to profit by that weakness. It binds the strong, while it protects the weak. It holds the adult to the bargain which the infant may avoid; the sane to the obligation from which the insane may be loosed. It does not mean to put them on an equality. On the other hand, it intends that he who deals with infant or insane persons shall do it at his peril. Nor is there, practically, any hardship in this; for men of sound minds seldom unwittingly enter into contracts with infants or insane persons.
1 Baxter v. Earl of Portsmouth, 2 C. & P. 178; Dane v. Kirkwall, 8 C. & P. 679; Tarbuck v. Bispham, 2 M. & W. 6; Fisher v. Jewett, Bert. (N. B.) 25.
"If the law required restitution of the price, as a condition precedent to the recovery of the estate, that would be done indirectly which the law does not permit to be done directly; and the great purpose of the law, in avoiding such contracts, the protection of those who cannot protect themselves, defeated. The insane grantor could not avoid the deed of his estate, because the same folly, which induced the sale, had wasted the proceeds; the result against which it is the policy of the law to guard.
"Whether the grantee, whose deed is avoided on this ground, may recover back the price, and under what circumstances and to what extent, presents a quite different question, into which it is not necessary to enter. The only question before us is, whether its restoration is a condition precedent to the recovery of the estate in a writ of entry, upon proof that the grantor was insane when the deed was made, and in the absence of all evidence of ratification.
"Doubtless, if the grantor, having been restored to sound mind, or the infant, upon coming of age, still retains and uses the consideration of the deed, without offer to restore; or seeks to enforce the securities, or avail himself of the contract which constituted such consideration; such conduct may furnish satisfactory, and, it may be, conclusive evidence of a ratification. And this is the extent, we think, to which the cases have gone, upon which the tenant especially relies, of Allis v. Billings, 6 Met. 415, and Arnold v. Richmond Iron Works, 1 Gray, 434.
"The first of these cases settled that a deed of land by an insane person is voidable only, and not void, and may therefore be ratified by him when he is of sound mind. The instruction to the jury was, that such a deed was absolutely void; this the court overruled, holding that the deed might be ratified by the party when he was of sane mind. • Upon the point first relied upon,' say the court, ' namely, that the demandant was insane when he executed the deed, the jury should have been instructed that this fact, if established, rendered the deed voidable, and that it was competent for the defendant to avoid it on that ground, if not estopped by his subsequent acts done while in his right mind; but that a voidable deed was capable of confirmation, and that if the grantor, in his lucid intervals, or after a general restoration to sanity, then being of sound mind, and well knowing and understanding the nature of the contract, ratified it, adopted it as a valid contract, and participated in the benefits of it, by receiving from the purchaser the purchase-money due on the contract, this would give effect to the deed, and render the same valid in the hands of the grantee, and would thus become effectual to pass the lands, and divest the title of the grantor.' 6 Met. 421.