Musselman v. Cravens et al. person apparently of sound mind, who is not known by the seller to be otherwise, and who has not been found to be otherwise by a proper proceeding for that purpose, and the contract is fair and bona fide, and the purchaser receives and uses the goods, whereby the contract becomes so far executed that the parties cannot be placed in statu quo, such contract cannot afterward be set aside because of the unsoundness of mind of said purchaser at the time of the sale, nor can payment for the goods be refused, either by the alleged lunatic or his representatives. The ruling in the above case was limited to a case of purchase of goods, which had been received and used, and where the parties had so far executed the contract as that they could not be placed in statu quo. The present case differs from that in two important respects, and they are, that the note in suit was not given in consideration of the purchase of property which had been used by the purchaser, and the contract is executory. It, therefore, becomes necessary to inquire whether the principle enunciated in the above case is applicable to the present case. The general rule is, that to make any agreement valid requires the assent of the understanding of the several parties thereto. This implies freedom of action, as well as the exercise of reason, accompanied with deliberation; the mind weighing, as in a balance, the good and evil on either side. Every true consent supposes, Ist, a physical power; 2d, a moral power of consenting; and, 3d, a serious and free use of them. Hence, it follows, that persons under duress, idiots, madmen, and infants are in general incapable of making contracts, either from a want of freedom of action, or inability to judge of their actions. This disability is not in all cases total, but sub modo only. But the persons laboring under it are, at all times, the peculiar objects of the paternal guardianship and protection of a court of equity. Willard Equity, 170. Judge COOLEY, in note 5 to 2 Bl. Com. 292, says: "The old doctrine that a man shall not be allowed to Musselman v. Cravens et al. stultify himself by alleging his mental incompetency in avoidance of his contract, is no longer accepted in the law, either in England or in this country. As Mr. Parsons has well said, those who have no mind cannot agree in mind with another; and as this is the essence of a contract, they cannot enter into a contract. I Pars. Con. 383. And if one has not made a contract, it is difficult to discover any sound reason which should preclude his saying so when he is charged with having become a party to one. The modern authorities allow want of mental capacity to be made a defence at law, as well as a ground for affirmative relief in equity, not only by the party himself while living, but by his representatives afterward. Lang v. Whidden, 2 N. H. 435; Mitchell v. Kingman, 5 Pick. 431; Grant v. Thompson, 4 Conn. 203; Horner v. Marshall, 5 Munf. 466; Ricev. Peet, 15 Johns. 503. And if a man is so intoxicated at the time. of entering into a contract as to be incapable of comprehending its meaning, nature or effect, and the other party is aware of that fact, this is a sufficient answer to an action upon it. Gore v. Gibson, 13 M. & W. 623. And see Foot v. Tewsksbury, 2 Vt. 97; Duncan v. McCullough, 4 S. & R. 484; Harbison v. Lemon, 3 Blackf. 51; Prentice v. Achorn, 2 Paige, 30; Reinicker v. Smith, 2 Har. & J. 421." It was held by this court, in Harbison v. Lemon, supra, that a conveyance may be avoided by a grantor either at law or in equity, if, at the time of its execution, he was so destitute of understanding as not to know what he was doing, whether the incapacity were occasioned by idiocy, lunacy, or drunkenness. In Jenners v. Howard, 6 Blackf. 240, it was said: "Mental incapacity at the time of contracting, produced by drunkenness or any other cause, is a good defence against a contract, whether that contract be evidenced by deed or parol. If the mind be incapable of assenting, the law pronounces the contract void. Drunkenness of itself merely, unless fraud be practised, will not avoid a contract; but if the party Musselman v. Cravens et al. be in such a state of intoxication, that he is for the time deprived of reason, the contract is void." It was held in Cummings v. Henry, 10 Ind. 109, that a party may rescind a contract entered into when he was so far intoxicated as to render him incompetent to contract. In Crouse v. Holman, 19 Ind. 30, it was held that a person alleging unsoundness of mind at a particular time, must establish, by a preponderance of the evidence, that he was not of sound mind at the given time; but when it appears that a person was, at a given time, of unsound mind, unless the unsoundness was occasioned by some temporary or transient cause, the legal presumption arises, that that state of mind continues, until the contrary is made to appear by evidence; but if, notwithstanding such unsoundness, the person had sufficient disposing memory, as if the unsoundness consisted of monomania, not impairing his capacity to acquire or dispose of property, then it devolved upon the party interested to sustain his acts in the particular case, to show that fact by evidence. In Somers v. Pumphrey, 24 Ind. 231, it was held that a clear distinction is drawn in the law, between mere weakness of intellect and insanity, or unsoundness of mind. Mere weakness of mind is not idiocy or insanity, nor does it amount to "unsoundness of mind" within the meaning of the law. In that case the court say: "The contract of a non compos mentis differs materially from one procured by fraud from a person of sound mind. In the latter case, the contract is made by one of sufficient capacity, and competent to make it, and his mind has consented to it, but that consent has been induced by the fraud of the other contracting party; but, if the person is non compos mentis, there is a want of capacity to contract; he does not, in a legal sense, consent, because there is a want of that mental capacity essential to a legal consent. In this respect, the case seems to be analogous to the contract of an infant, in whom there is, also, a want of capacity to contract, and it has been held that a deed made by an infant Musselman v. Cravens et al. might be avoided by his heirs, though the estate had passed into the hands of a bona fide purchaser, for a valuable consideration. Doe, ex dem. Moore, v. Abernathy, 7 Blackf 442." In Darnell v. Rowland, 30 Ind. 342, it was held that if a party be compos mentis, mere weakness or feebleness of mind does not render him incapable of making a contract, but may become a controlling circumstance, when connected with other facts tending to establish fraud, in giving character to the transaction, and rendering it fraudulent; but to make a pleading good for that purpose, the indicia of fraud must be alleged. In Henry v. Ritenour, 31 Ind. 136, it was held that mere dulness of intellect, from whatever cause, does not amount to incapacity to contract; and it was further held that where a party to a contract is voluntarily intoxicated at the time of making it, to the extent only that he does not clearly understand the business, this does not render his contract void or voidable, where no advantage is gained by dealing with him. In Reinskopf v. Rogge, 37 Ind. 207, this court said: "Mental incapacity, at the time of contracting, produced by drunkenness or any other cause, is a good defence against a contract, whether that contract be evidenced by deed or parol. If the mind be incapable of assenting, the law pronounces the contract void. Drunkenness of itself merely, unless fraud be practised, will not avoid a contract; but if the party be in such a state of intoxication that he is, for the time, deprived of reason, the contract is void." The question arises and is discussed, whether the contract of a person non compos mentis is void or voidable merely. We have a statute "defining who are persons of unsound mind, and authorizing the appointment of guardians for such persons," etc., which says: "Sec. 1. The words, 'persons of unsound mind,' as used in this act or in any other statute of this State, shall be Musselman v. Cravens et al. taken to mean any idiot, non compos, lunatic, monomaniac, or distracted person." The statute then points out the mode of proceeding against any one alleged to be "a person of unsound mind and incapable of managing his own affairs.” The eleventh section of such statute provides, that " every contract, sale or conveyance of any person, while a person of unsound mind shall be void." 2 G. & H. 573. If the above section is applicable to the present case, it must be decisive of the case, as it declares all contracts made by a person of unsound mind to be void. If the contract sued upon is absolutely void, it is incapable of ratification. But it has been several times decided that the above quoted section is applicable only to a person who has been found to be non compos in the manner prescribed in the above statCrouse v. Holman, 19 Ind. 30; Devin v. Scott, 34 Ind. 67; Wilder v. Weakley's Estate, 34 Ind. 181. ute. The case under examination must, therefore, be settled on general principles of law. It seems to be well settled by the above cases, and the numerous cases therein cited, that the contract of a person who has been judicially pronounced to be a non compos mentis is void. This proceeds on the ground that the inquisition and appointment of a guardian is conclusive evidence that such person is incapable of contracting, and is notice to all the world. But where a person has not been adjudged to be of unsound mind, and is apparently of sound mind, his contracts are voidable merely, and, as a sequence, are capable of ratification or disaffirmance when reason has been restored. STORY says: "The ground upon which courts of equity now interfere, to set aside the contracts and other acts, however solemn, of persons who are idiots, lunatics, and otherwise non compotes mentis, is fraud. Such persons being incapable in point of capacity to enter into any valid contract, or do any valid act, every person dealing with them, knowing their incapacity, is deemed to perpetrate a meditated fraud upon them and their rights. *** But courts of equity |