Burnham v. Kidwell

Citation113 Ill. 425
PartiesCLARA E. BURNHAM et al.v.JOHN W. KIDWELL.
Decision Date30 March 1885
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. FRANKLIN BLADES, Judge, presiding.

This was an action of ejectment, brought by John W. Kidwell, an idiot, as plaintiff, by J. M. Crigles, his conservator, against Mary A. and Clara E. Burnham, and their tenant, for one-half of the premises in dispute. On a trial by the court, without a jury, the plaintiff obtained judgment for the recovery of the premises, and the defendants perfected this appeal.

Mr. HAMILTON SPENCER, and Mr. W. E. HUGHES, for the appellants:

The statute makes contracts of an idiot, after the finding of a jury, void; but if made before the finding, they are only voidable. The statute does not, by express terms, include deeds and conveyances in its provisions, but deeds and conveyances are contracts, after all; and outside of the statute, the authorities are overwhelming that the deed of a person of unsound mind, if made before inquest found, is not void, but is only voidable. Crouse v. Coleman, 19 Ind. 30; Breckenridge v. Ormsby, 1 J. J. Marsh. 236; Summers v. Pumphrey, 24 Ind. 231; Kates v. Woodson, 2 Dana, 452; Allis v. Billings, 6 Metc. 415; Hovey v. Hobson, 53 Maine, 451; Arnold v. Richmond Iron Works, 1 Gray, 434; Ingraham v. Baldwin, 9 N. Y. (5 Seld.) 45; Cook v. Parker, 5 Phil. (Pa.) 265.

Neither the grantor nor his conservator can disaffirm the contract in any court without first refunding the purchase money, and expenditures for taxes, etc. Jennings v. Gage, 13 Ill. 610; Tisdale v. Buckmore, 33 Maine, 461; Knocke v. Rucks, 34 Miss. 105; Evans v. Gale, 17 N. H. 573; Otter v. Stuart, 30 Barb. 20.

A party can not affirm a contract in part and rescind it as to the residue. If he rescinds, he must do so in toto,--he must put the opposite party in as good condition as he was before the sale was made. Wolf v. Dietzsch, 75 Ill. 205; Buchenau v. Horney, 12 Id. 338.

A party can not rescind a contract of sale and at the same time retain the consideration he has received. He must put the other party in as good condition as before the sale, by a return of the property purchased. Smith v. Brittenham, 98 Ill. 188; Hamilton v. Manufacturing Co. 54 Id. 370; Buchenau v. Horney, 12 Id. 338.

To rescind an executed contract, there must be both mental weakness and also imposition or undue influence. Miller v. Craig, 36 Ill. 110.

Messrs. KERRICK, LUCAS & SPENCER, for the appellee:

We do not think it is very important to inquire whether the deed is void or voidable, as, in either instance, we think both judgments must be affirmed. It is provided by the statute: “That livery of seizin shall in no case be necessary for the conveyance of real property, but every deed, * * * not procured by duress, * * * the maker being of full age, sound mind, and discovert, shall be sufficient, without livery of seizin.” (Rev. Stat. chap. 30, sec. 1.) So, at least by implication, the General Assembly has said that the deed of a person not of sound mind should not be sufficient to convey real estate.

There is a conflict in the authorities as to whether the deed of an idiot is void, or merely voidable. A number of the ablest courts have held it absolutely void, ( VanDusen v. Sweet, 51 N. Y. 384, Farley v. Parker, 6 Ore. 105, and Dexter v. Hall, 15 Wall. 24,) while others have held it only voidable. Allis v. Billings, 6 Metc. 415; Gibson v. Soper, 6 Gray, 279; Hovey v. Hobson, 53 Maine, 455; Chew v. Bank of Baltimore, 14 Md. 308.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

The question whether a deed made by an idiot or lunatic, before the fact has been found by a jury and a conservator appointed, is void, or only voidable, can hardly be regarded as open to argument, in this State. The first section of our statute in relation to idiots, lunatics, etc., provides for the impaneling of a jury to find whether a person is an idiot or lunatic, and requires the court to appoint a conservator, when he shall be so found. The 14th section of the same statute declares that “every note, bill, bond, or other contract, by any idiot, lunatic, etc., * * * made after the finding of the jury, as provided in section 1 of this act, shall be void as against the idiot, lunatic, etc., * * * and his estate.” But by the next section (section 15) it is provided: “Every contract made with the idiot, lunatic, etc., * * * before such finding, * * * may be avoided, except in favor of the person fraudulently making the same.” (Rev. Stat. 1874, chap. 86.) Since a deed is but one form of a contract, it is necessarily included in the word “contract,” as here used. 1 Chitty on Contracts, (11th Am. ed.) 4; Bishop on Contracts, sec. 14.

Counsel for appellee, however, quote from section 1, chapter 30, of the Revised Statutes of 1874, to the effect that every deed, etc., not procured by duress, but signed, sealed, etc., the maker being of full age, sound mind, and discovert, shall be sufficient, etc., and insist that this, by implication, declares that one not of sound mind can not convey. This section simply declares that certain things shall constitute a good deed. It does not negative that a good deed can in no otherwise be made. It places idiots, lunatics and minors in the same class,--that is, excludes each,--and yet nothing is better settled by the...

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23 cases
  • Harris v. Adame, s. 1–12–3306
    • United States
    • United States Appellate Court of Illinois
    • September 30, 2015
    ...by the probate court may be voidable, upon proving mental incapacity to contract at the time of the transaction (Burnham v. Kidwell, 113 Ill. 425, 428–29 (1885) ; White v. White, 28 Ill.App.2d 19, 27–28, 169 N.E.2d 839 (1960) ), the petitioners pled that Arthur lacked capacity to convey to ......
  • Walton v. Malcolm
    • United States
    • Supreme Court of Illinois
    • October 7, 1914
    ......1 Devlin on Deeds, § 76. This is the rule in this state. Burnham v. Kidwell, 113 Ill. 425; Peck v. Bartelme, supra.        The reasons usually urged why a court of law, in ejectment proceedings, should not ......
  • Harman v. Harman
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 6, 1895
    ...... the sane, party thereto. McCormick v. Littler, 85. Ill. 62; Scanlan v. Cobb, Id . 296; Burnham v. Kidwell, 113 Ill. 425. It is like to a contract with an. infant,-- voidable by him, but binding upon the other party. . . A word. ......
  • Brandt v. Phipps
    • United States
    • Supreme Court of Illinois
    • November 20, 1947
    ......Plaintiff's individual quitclaim deed, executed while he was mentally incompetent, was voidable. Burnham v. Kidwell, 113 Ill. 425. Upon regaining his sanity, plaintiff could elect to either ratify or disaffirm his contract. Ratification, to be binding, ......
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