Burnham v. Kidwell

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., s * * 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 he made. It places idiots, lunatics and minors in the same class,—that is, excludes each,—and yet nothing is better settled by the adjudications of this court than that the deeds of infants are not void, but voidable only, (Keil v. Healey, 84 Ill. 104 , Cole v. Pennoyer, 14 id. 158 , and Blankenship v. Stout, 25 id. 132 ,) and, necessarily, the implication contended for is not warranted. Moreover, in Scanlan v. Cobb, 85 Ill. 296 , we expressly held that such a deed is voidable. Numerous decisions of other courts, not referred to in the opinion in that case, might be referred to in support of the doctrine, but it can not be necessary. The statute itself so declares, and that is conclusive.

Mrs. Carson and the appellants appear to have been purchasers in good faith and without notice, and it is quite clear that the original loan, to the extent it was made an incumbrance on the idiot’s land, was made for the benefit of the idiot, and that it was, in good faith, expended about his care and support.

Although we have spoken of this party as an idiot, it is proper to be observed he is not entirely without mind, nor is he universally esteemed an idiot. Some testimony is adduced that he is not an idiot at all, and all that can be fairly deduced from the testimony, when all considered together, is, that he is weak-minded to a degree rendering him incompetent to successfully conduct business.

No offer has been made, either before or since bringing suit, to reimburse to the parties the money of which the idiot has thus had the benefit. He can not retain this money and still recover back the land. Scanlan v. Cobb, supra; Eaton v. Eaton, 37 N. J. L. (8 Vr.) 108; Lincoln v. Buckmaster, 33 Vt. 659 ; Carr v. Halliday, 5 Ired. Eq. 67 .

The judgment is reversed and the cause remanded.

Judgment reversed.