Bowker v. Smith.

be claimed before the property is finally applied on execution to the payment of a partnership debt; that a completed levy for a partnership debt passes the title of the debtor to the execution creditor, and after that the preference cannot be claimed.

It is not necessary here to inquire whether the preference might be claimed after the levy was made and before the expiration of the year allowed for redemption, as the plaintiff's attachment was made after the lapse of that time.

It is, as I think, against the policy and plain intent of our laws for the satisfaction of debts, that after a suit has been instituted, land attached for a debt, judgment rendered, the land of the debtor set off on execution in satisfaction of the debt, the levy returned and recorded in the registry provided for giving publicity to all titles in land, the same land may be taken for a debt against the same debtor, and the prior title under the legal proceedings defeated; and such a claim also appears to me in direct conflict with the express provision of the statute, before cited, that after such proceedings and levy "all the debtor's interest in such real estate shall pass by the levy as against all persons," etc. General Statutes, chap. 208, § 12. In this case all the steps required by the statute were taken and the levy legally made; why, then, in the absence of fraud, should not all the interest of the debtor, as against all persons, pass to the creditor, as the statute expressly provides.

I find nothing in the practice of the English courts from which we have borrowed this equitable doctrine, nor in the law of other states, which gives any countenance to the position that after land of a partner has been applied in satisfaction of a partnership debt by the completed levy of an execution, the title derived under the levy can be defeated by a creditor of the individual partner, who first asserts his claim after the title under the former levy is complete. In all other jurisdictions, so far as I am informed, the claim to the preference must be made before the appropriation of the land to the payment of the other class of debts is complete under legal process. In this state, though we have not an authoritative decision directly in point, we have a great weight of judicial opinion clearly and carefully expressed against the claim made by this plaintiff.

After the creditors of a partnership have levied their execution on land belonging to one of the partners, and their title under the levy has become absolute by the lapse of a year, I think that a credVOL. II-26

Young v. Stevens.

itor of the individual partner cannot take the same land, and by the levy of his execution defeat the title derived under the previous levy for the partnership debt, and that on the case stated the defendant is entitled to judgment.

YOUNG, executor, v. STEVENS

(48 N. H. 133.)

Contract-when void for mental unsoundness of party to.

A., having a life estate in certain lands and owning stock thereon, conveyed the same to defendant on condition that he should support her for life, which he did. After her death her executor brought action to recover for use and occupation of the lands and for value of the property, alleging that the con veyance was void, A. being mentally imbecile at the time it was made. Held, that the plaintiff could not recover in the absence of bad faith or fraud on the part of the defendant.

THE plaintiff's testatrix, having a life estate in a farm and owning the stock and grain thereon, entered into a contract with the defendant, whereby she leased or surrendered to him her interest in the farm and conveyed to him absolutely the stock thereon, in consideration that the defendant should support the said testatrix during her life. The defendant took possession of the farm and stock under this agreement, and did support said testatrix until her death. The plaintiff brought this action to recover the value of the stock and of the use and occupation of the farm, alleging and offering to prove that the testatrix was mentally imbecile at the time the contract was made. He was nonsuited on the opening.

Wheeler, for plaintiff.

Cushing, for defendant.

NESMITH, J. The plaintiff, under his first count, seeks to recover for two weeks' board in 1864, as furnished by his testatrix to the defendant, for which the sum of $7.00 is charged, and also for sundry articles of personal property, such as provisions, etc. Probably some of these may be due, and may be recovered under plaintiff's first count, as having been delivered to the defendant under an express or implied contract, binding the defendant to pay for them.

Young v. Stevens.

The main dispute involved in the case arises out of the special contract of the testatrix, as made with the defendant on the 4th day of May, 1865. It is understood that, under this contract, the defendant agreed to take the lands in which the said Eliza Young had a life estate, also the stock on her farm, and to support the said Eliza during her natural life; and, according to the requirements of said contract, the defendant now claims the full performance, the said Eliza having deceased. On the other hand, the plaintiff claims that no title passed under this contract to defendant, by reason of the incapacity of said Eliza, she at the time laboring under mental imbecility. Wherefore, the plaintiff claims that the defendant should pay for the use of the premises enjoyed by him, and for the value of the stock taken under the written contract, and for the board of self and family during its existence; in short, that the whole of said written contract should be regarded as rescinded. It will be seen that the ruling of the court stands upon the plaintiff's own statement of his case, and it will be presumed to be stated as strong in his favor as the facts will justify.

The rules, definitions and limitations, as laid down by Judge BELL, in Dennett v. Dennett, 44 N. H. 531, are to be regarded as safe for our guidance, as applicable to the subject of mental imbecility or insanity, when existing in either party to executory or executed contracts. Every person may be deemed of unsound mind who has lost his memory and understanding by reason of old age, sickness, or other accident, so as to render him incapable of transacting his business and of managing his property.

As a commentary upon this comprehensive general rule, we may remark that the common law seems not to have drawn any nice discriminating line by which to determine how great must be the imbecility of mind to render a contract void, or how much intellect must remain to uphold it. Jackson v. King, 4 Cow. 216. When it appears that a grantor had not strength of mind and reason sufficient to understand the nature and consequences of his act in making a deed, it may be avoided on the ground of insanity. In other words, a man, by the bare execution of a written instrument, does not make it his deed, if at the time he was so weak in mind as to be incapable of understanding it, if explained to him, or the effect of the act he is about to perform. The question then, in cases where incapacity to contract from defect of mind is alleged, is

Young v. Stevens.

not whether a person's mind is impaired, nor whether he is afflicted by any particular form of insanity, but whether the powers of his nind have been so far affected by his disease as to render him incapable of transacting business like that in question. Weakness of understanding is not of itself any objection to the validity of a contract, if the capacity remains to see things in their true relations, and to form correct conclusions. The doubtful and uncertain point at which the disposing mind disappears, and where incapacity begins, can be ascertained only by an examination of all the circumstances of each particular case, to be duly weighed and considered by the court and jury; and, in determining the question, the common sense and good judgment of this tribunal must be mainly relied on.

The familiar rule of evidence is adopted here that every man is presumed to be sane until the contrary appears, and the burden of proof is on the party who asserts the want of capacity. Pettes v. Bingham, 10 N. H. 514. Nor is there any doubt as to the rule of practice here, which is that insanity may be either pleaded or given in evidence, as a bar to an action founded either upon an executory or executed contract. Burke v. Allen, 29 N. H. 106; Leaver v. Phelps, 11 Pick. 304; Rice v. Peet, 13 Johns. 543; Thompson v. Leach, 3 Mod. 310. In England, we have the recent case of Molton & Wife, Admin'x, v. Camroux, 2 Exch. 500, wherein Chief B. POLLOCK has ably investigated the question, when and how far insanity or lunacy may be an answer to a complete or executed contract, and under what circumstances suen a contract may not be rescinded. POLLOCK says: "We are not disposed to lay down so general a proposition as that all executed contracts, bona fide entered into, must be taken as valid, though one of the parties be of unsound mind. We think, however, we may safely conclude that when a person, apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bona fide, and which is executed and completed, and the subject-matter of the contract has been paid for and fully enjoyed, and cannot be restored, so as to put the parties in statu quo, such contract cannot be afterward set aside, either by the alleged lunatic or those who represent him." The case where this doctrine was held was assumpsit, brought by the representatives of the deceased person, Thomas Lee, to recover back certain annuities which had been purchased by said Lee in his life

Young v. Stevens.

time, without the knowledge on the part of the officers of the annuity society of any unsoundness of mind in Lee, the trade being in the ordinary course of the affairs of human life, and fair and bona fide on the part of the society. It was held that, after the death of the lunatic, his personal representatives could not recover back the premiums paid for the annuities.

Justice STORY remarks that courts of equity will watch with the most jealous care every attempt to deal with persons non compotes mentis, and asserts that where a contract is entered into with good faith, and is for the benefit of such person, as for necessaries, courts of equity as well as courts of law will uphold it. And so, if a purchase is made in good faith, without any knowledge of the incapacity, and no advantage has been taken of the party, courts of equity will not interfere to set the contract aside, if injustice will thereby be done to the other side, and the parties cannot be placed in statu quo, as before the purchase. In this way, as in the case of infants, this class of persons are protected. But the rule of law is used, as it was designed, for a shield. It is not allowed to work a fraud and injustice to others. 1 Story's Equity, § 228, and cases in note; Neill v. Morley, 9 Ves. 478; 2 Kent's Com. 240; Sprague v. Duell, 11 Paige Ch. 480; Loomis v. Spencer, 2 id. 153; Baxter v. Earl of Portsmouth, 5 B. & C. 170.

Upon the grounds and reasons suggested in the aforesaid cases, the plaintiff will not be permitted to rescind the contract of his testatrix without showing fraud, undue advantage, or imposition in the defendant; for the labor and services of the defendant have now largely entered into the contract, and they cannot be restored to him, or compensation as an equivalent be easily made therefor. The doctrine is well established, that no contract can be rescinded unless both can be restored to the condition in which they were before the contract was made. If, therefore, one of the parties has derived an advantage from the performance of the contract, he cannot hold this, and consider the contract as rescinded, but must do all that the contract obliges him to do, and, in such cases, seek his remedy in damages. 2 Parsons on Con. 192; Hunt v. Silk, 5 East, 449; Hill. on Sales, 308, 377; Poor v. Woodman, 25 Vt. 445; Miner v. Bradley, 22 Pick. 458; Stevens v. Cushing, 1 N. H. 17; Weeks v. Robie, 42 'd. 316, and cases cited.

But even assuming the contract to be void in the case before us by reason of the mental imbecility of the testatrix to the extent as