Gribben v. Maxwell

• Decision Date: 09 July 1885
• Citation: 7 P. 584,34 Kan. 8
• Parties: NOAH GRIBBEN, as Guardian of Olive E. Gribben, v. SAMUEL E. MAXWELL
• Court: Kansas Supreme Court

7 P. 584

34 Kan. 8

NOAH GRIBBEN, as Guardian of Olive E. Gribben, v. SAMUEL E. MAXWELL

Supreme Court of Kansas

July 9, 1885

Error from Cowley District Court.

ACTION brought December 7, 1883, by Noah Gribben, as guardian of Olive E. Gribben, a lunatic, against Samuel E. Maxwell, to set aside a conveyance executed by Olive E. Gribben on June 11, 1883. The petition, among other things, alleged that on June 11, 1883, the said Olive E. Gribben, being a lunatic made, executed, acknowledged and delivered to the defendant a quitclaim deed for three-sevenths interest of the east half of the northeast quarter of section 15, and the south half of the northwest quarter of section 14, all in township No. 34 south, of range 4 east, in Cowley county, in this state. The defendant filed an answer, the second defense of which was as follows:

"That he purchased of the said Olive E. Gribben the lands described in said petition in good faith; that he paid to the said Olive E. Gribben for said lands the sum of three hundred and fifty dollars, lawful money of the United States; that the said sum of money paid for said lands as aforesaid, was a fair and reasonable price for the same at the time said purchase was made; that the said defendant had no knowledge or information of the lunacy of the said Olive E. Gribben that at the said time and before, there was nothing in the looks or conduct of the said Olive E. Gribben to indicate she was of unsound mind, or incapable of the transaction of business; but on the contrary, at the time of said purchase and for a long time prior thereto, the said Olive E. Gribben was apparently in possession of her full mental faculties and was then and had been for a long time prior thereto engaged in the transaction of business for herself.

"Wherefore, the said defendant prays the said petition of the said plaintiff be dismissed, and that the title of the said defendant in and to the said lands be quieted against the claims of the said Olive E. Gribben, and all persons claiming or to claim under, through or by her, and for such other and further relief as to the court may seem equitable."

To the second defense of the answer the plaintiff filed a demurrer, upon the ground that it was insufficient in law to constitute any defense whatever. At the May Term, 1884, the demurrer was overruled. The plaintiff excepted, and brings the case here.

Judgment affirmed.

Hackney & Asp, for plaintiff in error.

A. J. Pyburn, for defendant in error.

HORTON, C. J. Cole, J., dissenting.

OPINION

HORTON, C. J.:

As a general rule, the contract of a lunatic is void per se. The concurring assent of two minds is wanting. "They who have no mind cannot 'concur in mind' with one another; and as this is the essence of a contract, they cannot enter into a contract." (1 Parsons on Contracts, 6th ed., 383; Powell v. Powell, 18 Kan. 371.) Notwithstanding this recognized doctrine, the decided cases are far from being uniform on the subject of the liability or extent of liability of lunatics for their contracts. An examination of the cases upon the subject shows that there is an irreconcilable conflict in the authorities. We think, however, the weight of authority favors the rule that where the purchase of real estate from an insane person is made, and a deed of conveyance is obtained in perfect good faith, before an inquisition and finding of lunacy, for a sufficient consideration, without knowledge of the lunacy, and no advantage is taken by the purchaser, the consideration received by the lunatic must be returned, or offered to be returned, before the conveyance can be set aside at the suit of the alleged lunatic, or one who represents him.

Wright, C. J., in Corbit v. Smith, 7 Iowa 60, thus states the law:

"In the next place, a distinction is to be borne in mind between contracts executed and contracts executory. The latter, the courts will not, in general, lend their aid to execute where the party sought to be affected was at the time incapable, unless it may be for necessaries. If, on the other hand, the incapacity was unknown -- no advantage was taken -- the contract has been executed, and the parties cannot be put in statu quo -- it will not be set aside."

In Behrens v. McKenzie, 23 Iowa 333, Dillon, J., said:

"But with respect to executed contracts, the tendency of modern decision is to hold persons of unsound mind liable in cases where the transaction is in the ordinary course of business, is fair and reasonable, and the mental condition was not known to the other party, and the parties cannot be put in statu quo."

In Allen v. Berryhill, 27 Iowa 534, it was decided that--

"Where a contract made by an insane person has been adopted, and is sought to be enforced by the representatives of such person, it is no defense to the sane party to show that the other party was non compos mentis at the time the contract was made."

DISSENT BY: Cole

DISSENT

Cole, J., dissenting, expressed his views as follows:

"In every case of contract with a lunatic, which has been executed in whole or in part, the fact that the parties can or cannot be placed in statu quo, will have an important bearing in determining whether such contract shall stand. . . . When the parties cannot be placed in statu quo, and the contract is fair, was made in good faith and without knowledge of the lunacy, it will not be set aside, even at the suit of the lunatic. And this, not because the contract was valid or binding, but because an...