239. Conveyances by insane persons who are tinder guardianship are void, but, if not under guardianship, their conveyances are voidable only.
240. The same rules govern conveyances by intoxicated persons and habitual drunkards.
The disabilities of persons of nonsane mind to convey their real property are much the same as disabilities of infants. Their incapacity is a question of fact in each case. The test which is generally applied is the grantor's capacity to comprehend the business which he is transacting.15 Nonsoundness of mind may arise from age, sickness, accident, or other cause, but the legal consequences are the same in each case. Mere weakness of mind does not incapacitate a person to convey his property.16 But when such weakness of mind is shown, less proof of duress or fraud is required to have his conveyance set aside.17 If the person is so insane that he has been placed under guardianship, any conveyances made by him are absolutely void, and not merely voidable;18 otherwise they are voidable only,19 but in some states the courts hold that conveyances by insane persons, though not under guardianship, are void.20 When the unsoundness of mind is only in the form of a monomania, power to transact business is affected only in case the transaction in question is connected with the subject on which the person is insane.21 Insanity arising after a valid contract of sale or purchase has been made does not affect the validity of the contract.22 On the other hand, conveyances made during the insanity of the grantor may be ratified by him after he has recovered.23 The voidable conveyance of an insane person may be set aside at the suggestion of his guardian during his life or after his death on the application of his heirs or personal representatives.24 The cases are conflicting as to the necessity for the restoration of the purchase money when deeds of
11 Jones v. Butler, 30 Barb. (N. Y.) 641; Goodnow v. Lumber Co., 31 Minn. 468, 18 N. W. 283. So by statute in some states. 1 Stim. Am. St Law, § 6602; Wright v. Germain, 21 Iowa, 585; Green v. Wilding, 59 Iowa, 679, 13 N. W. 761. Contra, Tucker v. Moreland, 10 Pet. 58; Irvine v. Irvine, 9 Wall. 617; Prout v. Wiley, 28 Mich. 164; Huth v. Dock Co., 56 Mo. 202.
12 Bool v. Mix, 17 Wend. (N. Y.) 119; Mccormic v. Leggett, 8 Jones (N. C.) 425.
13 Brandon v. Brown, 106 111. 519. Where the consideration received has been wasted by the infant, no offer to restore it Is necessary. Chandler v. Simmonds, 97 Mass. 508; Green v. Green, 7 Hun (N. Y.) 492. But contra, Stout v. Merrill, 35 Iowa, 47; Kerr v. Bell, 44 Mo. 120.
14 Battell v. Torrey, 65 N. Y. 294; Wood v. Truax, 39 Mich. 628. Cf. Mer-ritt v. Simpson, 41 111. 391.
15 Odell v. Buck, 21 Wend. (N. Y.) 142; Titcomb v. Vantyle, 84 111. 371; Corbit v. Smith, 7 Iowa, 60.
16 Aiman v. Stout, 42 Pa. St. 114; Taylor v. Cox, 153 111. 220, 38 N. E. 656; Miller v. Craig, 36 111. 109; Odell v. Buck, 21 Wend. (N. Y.) 142; In re Pike's Will, 83 Hun, 327, 31 N. Y. Supp. 689.
17 Allore v. Jewell, 94 U. S. 506; Harding v. Handy, 11 Wheat. 103.
18 Corbit v. Smith, 7 Iowa, 00; Mohr v. T ulip, 40 Wis. 66; Rogers v. Walker, 6 Pa. St. 371. A. deed of his homestead is void though his wife joins. New England Loan & Trust Co. v. Spitler, 54 Kan. 560, 38 Pac. 799.
19 Bunham v. Kidwell, 113 111. 425; Allis v. Billings, 6 Mete. (Mass.) 415; Breckenridge v. Ormsby, 1 J. J. Marsh. (Ky.) 236.
20 Evans v. Horan, 52 Md. 602; Van Deusen v. Sweet, 51 N. Y. 378; Farley v. Parker, 6 Or. 105; German Sav. & Loan Soc. v. De Lashmutt, 67 Fed. 399. See, as to the theory of lucid intervals, Wthart_ & S. Med. Jur. §§ 61, 62; 2 Hamilton, Leg. Med. 113, 222.
21 Trich's Ex'r v. Trich, 165 Pa. St. 586, 30 Atl. 1053; Ekin v. Mccracken, 11 Phila. (Pa.) 534; Turner v. Rusk, 53 Md. 65; Farmer v. Farmer, 129 Mo. 530, 31 S. W. 926; Blough v. Parry (Ind. Sup.) 40 N. E. 70; Mcclary v. Stull, 44 Neb. 175, 62 N. W. 501.
22 Ekin v. Mccracken, 11 Phila. (Pa.) 534.
23 Arnold v. Iron Works, 1 Gray (Mass.) 434; Eaton v. Eaton, 37 N. J. Law, 108.
24 Campbell v. Kuhn, 45 Mich. 513, 8 N. W. 523; Arnold v. Townsend, 14 Phila. (Pa.) 216. But see Key's Lessee v. Davis, 1 Md. 32. The wife and children of the grantor cannot, during his lifetime, question his mental capacity
§§ 241-242) insane persons are set aside. But it seems that there should be a restoration when the grantee was ignorant of his grantor's incapacity, or when there was no fraud present.25 As in the case of infants, the lands of insane persons may be conveyed by order of court.