their lives and the life of the survivor, with remainder to their first and other sons in tail general, with remainder to their first and other daughters in tail general, with remainders over. There was issue of the marriage, one son, the lunatic, and a daughter, who afterwards married and was the mother of the plaintiff. The father survived his wife and married again, and died in 1815, leaving the defendant, his son. The lunatic died intestate and without issue on the 28 May, 1823. The defendant claimed to be entitled to the estate under indentures of lease and release, dated Aug. 1801, from the lunatic, and a recovery suffered by him in pursuance thereof. A bill was filed by the grandson, charging that such indentures of lease and release and recovery were altogether fraudulent and void, and ought to be set aside, for that the lunatic, who was tenant in tail of the estate, was of such weak and imbecile mind and understanding, that he was by law incapable of being a party to such indentures or recovery, and that he was induced to become a party thereto by fraud, duress, and imposition; and, as evidence of such weakness and imbecility of mind, the plaintiff charged that the lunatic from his birth was an idiot, or so nearly so that he never could count 20s. correctly, and never had any idea of the value of property, and was wholly incapable of understanding the nature of his rights to the said estates, or the nature and effect of the indentures and recovery; and that the said lunatic was fraudulently and improperly made a party to the said recovery. The bill prayed that the plaintiff might be declared entitled to the estate and the rents thereof from the death of the lunatic, and that the defendant might be decreed to deliver up possession, and to account for such rents, or that an issue might be directed to try the title to the estate, and the defendant restrained from setting up any outstanding legal estate upon the trial of such issue (n). The defendant contended that the rights of the lunatic, as tenant in tail, were barred by the said indentures and recovery, and that he was perfectly of sane mind, and (n) Jones v. Roberts, 18 June, 1830, Reg. Lib. A. 1829, fol. 2147. of good understanding, and that he was capable to count 20s. correctly, and that he always had an idea of the value of property, and had generally speaking a competent knowledge thereof; and denied that he was wholly or in any degree incapable of understanding the nature of his right to the said estate, or the nature and effect of the said indentures and recovery; and that as such indentures and recovery were executed and suffered more than twenty years ago, the defendant submitted, that, after such length of time, the plaintiff should not be aided by a Court of Equity-The Vice Chancellor directed the following issue-Whether, at the time of suffering the recovery in question, and also at the time of executing the indentures of lease and release, the lunatic was incompetent to understand their nature and effect. At the trial of such issue, the jury found, that, at the time of suffering the said recovery, and executing the said indentures of lease and release, the lunatic was incompetent to understand the nature and effect of the same. The cause having come on for further directions, the Master of the Rolls decreed that the said indentures of lease and release, and the common recovery suffered in pursuance thereof, were fraudulent and void; and that the plaintiff was entitled to the estate and premises in the pleadings mentioned, and to the rents and profits thereof from the death of the lunatic, as the tenant in tail, under the limitations of the settlement; and that the defendant should deliver up to the plaintiff the possession of the estate, and all the title deeds in his possession or power relating thereto: and it was referred to the Master to take an account of the rents of the estate since the death of the lunatic, which had been received by the defendant, or for his use. And, if it should appear that the defendant had been in the occupation of the premises, or any part thereof, during the whole or any part of such time, the Master was to set an annual value by way of rent on the said premises during the time that the said defendant had been so in possession. And it was ordered that the said defendant should pay unto the plaintiff what the said Master should find due in respect of such rents as he should direct; and the defendant was ordered to pay unto the plaintiff his costs of the suit, to be taxed by the Master (o). SECTION II. Of Alienation by Deed. EVERY alienation and contract affecting the rights of a party ought to be performed with sound judgment, and the acts of the will which are expressed in certain instruments made for evidencing intention, must be understood to be those of a mind endued with sufficient reason to understand their nature and effect, otherwise, they are either absolutely void or voidable only (p). The feoffment of an idiot or lunatic in person is not void, but voidable (q); but it cannot be avoided by the party himself on his recovery, and the reason given in the books is, because no man is permitted by law to disable himself (). The reason why feoffments of infants and persons non compotes mentis are voidable only, proceeds from the solemnity of livery of seisin, which was anciently transacted coram paribus curtis, who signed their attestation to the same, which the law presumed they would not have done, had the incapacity of the party been apparent (s). (0) Jones v. Roberts, Reg. Lib. A. 1830, fol. 397. (p) The law of England, upon this subject, seems to have been nearly the same in the time of our earliest legal writers, as at the present day. Generaliter tamen tenendum est, quod mutus donationem facere non potest, quia donationi consentire non potest; sicut nec furiosus, nec mente captus, nisi lucidis gaudeat intervallis. Cowell's Instit. Juris. Angl. Lib. 2, tit. 7, s. 4; Fleta, Lib. 3, c. 3, s. 10; Mirrour of Justices, c. 2, s. 27. Furiosus autem stipulari non potest, nec aliquod negotium agere, quia non intelligit quid agit. Eodem modo, nec infans, vel qui infanti proximus est, et qui multum a furioso non distat, nisi hoc fiat ad commodum suum et cum tutoris authoritate. Bract. Lib. 3, c. 2, s. 8; Fleta, Lib. 2, c. 56, s. 19. (q) 2 Roll. Abr. 2, (E.) pl. 3; Shepp. Touchst. 204. (r) Litt. ss. 405, 406; Co. Litt. 247. b.; 4 Rep. 126, 127. (s) Thompson v. Leech, Carth. If a man, when of sane memory, makes a feoffment with power of attorney to deliver seisin, which is delivered by the attorney after the feoffor has become non compos mentis, it is good, having relation to the time when the authority was given (t). But, if a lunatic makes a feoffment with letter of attorney, and livery is made after he has recovered his understanding, but without his further assent, the feoffment is void (u). It has been said that an exchange made between a man of unsound mind and another person, is not void but voidable, and that it is good against the former, although his heir may avoid or confirm it at his election (v). But, whether such a transaction be void or voidable only must, it should seem, depend upon the nature of the deed by which it has been effected. By the common law a writ lay for compelling a partition of lands belonging to coparceners, and by the statutes 31 Hen. 8, c. 1, and 32 Hen. 8, c. 32, the same remedy was extended to joint-tenants and tenants in common. It is said, that, if parceners of nonsane memory make partition, unless it be equal, it shall only bind the parties themselves, but not their issue; and the reason given is the same as that why all other contracts bind them, viz. because no man is admitted to stultify himself; but the issue may avoid such partition for the same reason as all other contracts made by such ancestors during their insanity, as they may be admitted to shew the incapacity of their ancestors for avoiding all acts done by them during that time (w). By statute 8 & 9 Wm. 3, c. 31 (a), an easier method of carrying on the proceedings in a writ of partition of lands held either in joint-tenancy, coparcenary, or in common, than was 435; S. C. 2 Salk. 427; 3 Mod. 301; Comb. 468; 3 Lev. 284; Show. P. C. 152. Exchange 9; See Perk. c. 4, s. 198. (w) Co. Litt. 166. a.; 4 Rep. 125; (t) Jennings v. Bragg, Cro. Eliz. Bac. Abr. tit. "Idiots and Lun." (F.) 446; Perk. c. 1, s. 22. (x) This statute was made perpe(u) Perk. c. 1, s. 23; 2 Roll. Abr. tual by 3 & 4 Anne, c. 18, s. 2. See 2, (E.) pl. 5. 41 Geo. 3, c. 109, s. 16; ante, p. (v) Shepp. Touchst. 291; Bro. 186. used at the common law, is chalked out and provided. By the second section of that act it is declared, that if the tenant or other person, against whom judgment on a partition shall have been given, shall be non sana memoriæ, then such person may, within one year after the removal of his inability, shew cause on motion against such judgment, and the Court may award a new partition. But resort is now seldom had to the common law mode of compelling partitions of land, but they are effected by means of a bill in equity (y). The release, surrender, letter of attorney to give livery, warranty, or any other deed or writing obligatory, though it is said, that, at law, they bind the non compos, are mere nullities with respect to others, and differ from a feoffment in person, which is a matter of greater solemnity. Therefore, where a non compos, (being tenant for life, remainder to his first and other sons, with remainder over), did by deed, before the birth of any son, surrender to the remainderman, with the intent to destroy the contingent remainders, and died leaving issue a son, it was held that the surrender was void ab initio, and not barely voidable; for, had the surrender been voidable only, yet, if at any time it had been effectual to merge the estate for life before the birth of the son, it could not have been revived again by any act ex post facto; and that, the surrender being void ab initio, the son, though he did not claim as heir, but by way of remainder, might take advantage of it; and in this case a distinction was established between a feoffment with livery propriis manibus of a non compos, and his bare execution of a deed by sealing and delivering, as in cases of surrenders, grants, releases, &c., the former being voidable, the latter absolutely void ab initio as to third parties (≈). It has been decided in a recent case, that a man, by bare execution of an instrument, does not make it his deed, if, at (y) 2 Ves. jun. 125; Cruise Dig. 2 Vol. 547; Mitf. Pl. pp. 119, 120, 122, 123, 4th ed. (z) Thompson v. Leach, Carth. 435; S. C. 2 Salk. 427; 3 Mod. 301; 12 Mod. 173; Comb. 468; 3 Lev. S 284; 2 Vent. 198; Show. Parl. Cas. 152. See Perk. s. 21; Bryd. 46; Noy's Maxims, p. 145, Bythewood's ed.; Bac. Abr. tit. "Idiots and Lun," (F). |