Orr v. Equitable Mortg. Co.

• Decision Date: 07 June 1899
• Citation: 33 S.E. 708,107 Ga. 499
• Parties: ORR v. EQUITABLE MORTG. CO.
• Court: Georgia Supreme Court

33 S.E. 708

107 Ga. 499

ORR
v.
EQUITABLE MORTG. CO.

Supreme Court of Georgia

June 7, 1899

Syllabus by the Court.

1. The contract of an insane person who has not been adjudged a lunatic by a court of competent jurisdiction is voidable after his death, at the instance of his legal representative.

2. That the other party to the contract was ignorant that the person with whom he was dealing was in fact insane, and that the existence of such insanity could not have been discovered by an ordinarily reasonable and prudent person, do not make such a contract valid and binding, nor interfere with the right of the legal representative to set up in defense to an action brought against him on the contract the insanity of the decedent.

Error from superior court, Forsyth county; G. F. Gober, Judge.

Action by the Equitable Mortgage Company against L. M. Orr, administrator of Frederick Harwell, deceased. Judgment for plaintiff. Defendant brings error. Reversed.

H. P. Bell and H. H. Perry, for plaintiff in error.

Payne & Tye, H. L. Patterson and J. A. Noyes, for defendant in error.

COBB, J.

The Equitable Mortgage Company brought a petition against L. M. Orr, as administrator of Frederick Harwell, deceased, praying for the foreclosure of a mortgage upon realty which had been executed by Harwell. The petition set up no equity, and had for its purpose nothing save the obtaining [33 S.E. 709.] of a judgment of foreclosure. In answer to the rule nisi issued upon this petition, the administrator set up as a defense that his intestate was, at the time of the execution of the mortgage, insane, and that, therefore, the mortgage was void. Upon the trial the jury rendered a verdict in favor of the plaintiff. The defendant made a motion for a new trial, in which complaint was made that the court erred in certain charges to the jury, which were, in substance, that if, at the time that Harwell executed the mortgage, he was insane, but the mortgagee had no notice of such mental infirmity, and there was nothing about his condition which would put a reasonably prudent man on notice that he was insane, the alleged mortgage was valid, and bound the deceased, notwithstanding he was mentally incapable of making a contract.

1. The proposition stated in the first headnote was directly ruled by this court in Bunn v. Postell, 33 S.E. 707.

2. While there are decisions by English courts, as well as by some American courts, holding that one contracting...