German Savings & Loan Soc. v. De Lashmutt

• Decision Date: 22 April 1895
• Docket Number: 2,147
• Citation: 67 F. 399
• Parties: GERMAN SAVINGS & LOAN SOC. v. DE LASHMUTT et al.
• Court: U.S. District Court — District of Oregon

67 F. 399

GERMAN SAVINGS & LOAN SOC. v. DE LASHMUTT et al.

No. 2,147

United States Circuit Court, D. Oregon.

April 22, 1895

Milton W. Smith, for plaintiff.

M. L Pipes, for defendant William Starr.

BELLINGER District Judge.

This is a suit to foreclose a mortgage executed by the defendant De Lashmutt in 1890 to secure the latter's note for $25,000 upon which there is now due, principal and interest, about $26,000. The title of De Lashmutt to a part of the mortgaged premises, consisting of the south two-thirds of lot 3 in block 22 in the city of Portland, is by deed from Bridget Lavin, now deceased, of date June 7, 1887. The bill of complaint alleges that the defendant Starr claims some interest in the south two-thirds of said lot, which interest arises under a certain deed of De Lashmutt and wife to said Starr, dated April 7 1893. The defendant Starr answers to the bill that he claims to be the owner in fee simple of the property in question, as heir at law and devisee of Bridget Lavin; and he further answers that at the time of the execution of the deed to De Lashmutt by Bridget Lavin, and for a long time prior and subsequent thereto, she was non compos mentis and insane, and was incapable of executing or acknowledging such deed. The complainant meets this defense by amendments to his bill, alleging, in effect, that at the time it made its loan to De Lashmutt, and took the mortgage in suit, it did so in good faith, without notice or knowledge of the alleged insanity of De Lashmutt's grantor; that De Lashmutt paid Bridget Lavin $10,000, which was a fair price, for the property in controversy, and that the money was used by her for necessary expenses of maintenance and support, and that at the time of such purchase De Lashmutt acted in good faith, and without notice of her alleged sanity; that about April 7, 1893, De Lashmutt sand the defendant Starr, 'by a good and valid accord and satisfaction, had a full and complete settlement between themselves of all the matters and things then or theretofore in controversy between said De Lashmutt and said Starr, as heir, devisee, and personal representative of said Bridget Lavin, or theretofore in controversy between said De Lashmutt and said Lavin with respect to the ownership and possession of said mortgaged premises; and that then, and in pursuance and consideration therefor, said De Lashmutt executed and delivered to said Starr the deed referred to in the original bill, bearing date April 7, 1893; and that said Starr, in pursuance and consideration thereof, accepted said deed, and went into possession thereunder. ' The defendant Starr excepts to all these matters so alleged for impertinence.

It is settled that the deed of a person non compos mentis is void. A person incapable of understanding is incapable of executing a contract or deed. Whatever differences of opinion once existed as to whether the deed of an insane person was void or voidable, the question is authoritatively settled that such deed is absolutely void. Formerly the rule in England was that 'the deed, feoffment, or grant which any person non compos mentis makes is avoidable'; but even under this rule, which is now no longer accepted, the doctrine was steadily maintained that, as against the heirs of a lunatic his deed was invalid. Whatever reasons existed for enforcing a contract against the lunatic himself, they were never allowed in any case to apply to his heir. Dexter v. Hall, 15 Wall. 20; Edwards v. Davenport, 20 F. 756; Farley v. Parker, 6 Or. 105. The doctrine of bona fide purchase, which the plaintiff invokes, is not a rule of property. It does not determine the question of title between parties. It is only available by way of defense. It is a shield in the hands of a defendant, to protect him against the...