Lobdell v. Lobdell, 36 N. Y. 327; Story v. Conger, 36 N. Y. 673; Allis v. Billings, 6 Met. 415; Arnold v. Richmond Iron Works, 1 Gray, 437; Gibson v. Soper, 6 Gray, 279; Molton v. Camroux, 2 Exch: 500, in error, 4 Exch. 18; Worrall v. Munn, 38 N. Y. 137; Card v. Card, 39 N. Y. 317; Chew v. Bk. 14 Md. 299; Somers v. Pumphrey, 24 Ind. 231; Crouse v. Holman, 19 Ind. 30.

There is no proof that Hall and Dexter, or Hall and Page ever met, or that Page or Dexter knew of or suspected the insanity of Hall; nor is there any evidence of unfairness, fraud or inadequacy of price.

Yauger v. Skinner, 1 McCarter (N. J.) 389. The learned judge was, therefore, wrong in instructing and charging the jury that the power of attorney was absolutely void.

This statute, we submit, ran against all th plaintiffs, minors as well as adults.

Clarke v. Huber, 25 Cal. 593; Simpson Shannon, 3 A. K. Marsh. (Ky.) 462; Wells Ragland, 1 Swan (Tenn.) 501; Mitchell v. Ber ry, 1 Met. (Ky.) 602; Walker v. Bacon, 32 Mo 144; Richardson v. Williamson, 24 Cal. 289. If Hall had title at all, he took it under th grant of Dec. 30, 1848, as ratified by the Va Ness ordinance, which took effect Jan. 1, 1855 The title was perfected by this ordinance, and not by the act of Congress of July 1, 1864 That act relinquished and granted to the city and its successors, all the lands within the cor porate limits of its charter of 1851, for the uses and purposes specified in the ordinance of said city-meaning the Van Ness ordinance. See, 13 U. S. Stat. at L. 333, 335.

See, in addition to the authorities above This takes us back to the ordinance itself. cited, Breckenridge v. Ormsby, 1 J. J. Marsh. which recites that "the city of San Francisco (Ky.) 236; Fitzgerald v. Reed, 9 S. & M. hereby relinquishes and grants all the right and (Miss.) 94; Richardson v. Strong, 13 Ired. (N. | claim of the city to the lands within the corpoC.) 106; Molton v. Camroux, 2 Exch. 487, 4 rate limits, to the parties in the actual possesExch. 17; Ingraham v. Baldwin, 9 N. Y. 45, 9sion thereof, by themselves or their tenants, on Exch. 313; Baxter v. Earl of Portsmouth, 5 B. or before the first day of January, A. D. 1855, & Cr. 170; 1 Story, Eq. Jur. 214, sec. 228; provided, that all persons who hold title to Price v. Berrington, 7 Eng. L. & E., 254; Beav-lands within said limits by virtue of any grant an v. McDonnell, 24 Eng. L. & E. 484, 9 Exch. 309; 2 Washb. Real Est. 558, pl. 13; 564, pl. 21; Creach v. Blood, 2 Jones & L. 509.

We submit that the deed of Hall by his attorney was not even voidable. So far as appears, he had not been placed under a committee, nor had he been pronounced insane by judicial decision, and until that is done, his contracts are valid, no undue advantage having been taken of him in obtaining the contracts.

Sims v. McLure, 8 Rich. Eq. (S. C.) 286; Hovey v Chase, 52 Me. 304; 2 Washb. Real Est. 558, pl. 15, and note 5; Parker v. Davis, 8 Jones' L. (N. C.), 460.

The court erred in refusing, when the plaintiff's rested, to instruct the jury as requested by the defendant's counsel, or, in other words, in refusing to nonsuit the plaintiffs. As the case then stood, the action was clearly barred by lapse of time.

The rights of the widow and children of Hall, if they had any rights in the lands in question, attached and became perfect on the death of Hall, in September, 1860. The statute of limitations ran from that time.

Cal. Stat., Act of April 22, 1855.

399, 6 Am. Rep. 533; contra, Gehrke v. State, 13
Tex. 568; Wyman v. Gould, 47 Me. 159; Poole v.
Richardson, 3 Mass. 330; Com. v. Fairbanks, 2
Allen, 511; Baxter v. Abbott, 7 Gray, 71.

Medical men who have no personal knowledge of the facts may be asked their opinions whether certain appearances detailed by other witnesses are symptoms of insanity. Doe v. Reagan, 5 Blackf. 217, 33 Am. Dec. 466; Com. v. Rogers, 7 Met. 500, 4 Am. Dec. 458.

Medical expert may be cross-examined as to whether he believes prisoner was able to distinguish right from wrong. Clark v. State, 12 Ohio, 483. 40 Am. Dec. 481.

Experts stating their opinion as to sanity should state circumstances and symptoms from which their opinion is drawn. Hathorn v. King, 8 Mass. 371, 5 Am. Dec. 106.

An expert may testify directly to mental capacity in either of three ways: 1. He may state his opinion based upon personal knowledge of the person; not upon hearsay nor upon conflicting testimony. 2. After hearing all the testimony on the question. if it is not conflicting he may give his opinion as to the mental condition indicated by it. 3. He may

made before the 7th day of July, 1846, or
grants to lots of land lying east of Larkin
street, and northeast of Johnson street, made
by any ayuntamiento, town council or alcalde
of said pueblo, since that date and before the
incorporation of the city (April 15, 1850),
and which, or the material portion there-
of, was recorded, etc.,
shall, for all the
purposes of this ordinance, be deemed to be the
possessors of the land so granted." The act
of Congress, then, related back to and con-
firmed what was before sought to be obtained
by the ordinance. It did not give title, but
simply confirmed the title already granted by
the ordinance itself. It will be seen that the
act of 1864 does not grant or relinquish any
title to individuals, whether holding grants or
not, but to the city. So by the ordinance the
city grants its rights and claims, in one case
to the actual occupants, and in the other, to
parties holding recorded grants. The state
legislature, March 11, 1858, ratified and con-
firmed the action of the city council, and thus
by relation the title was settled as of January
1, 1855, or of the date of the grant to Hall in
December, 1848; probably under the latter.

be asked what a supposed state of facts, put to him
hypothetically corresponding in details to the facts
already in evidence, would indicate as to mental
condition. Question may have reference to facts
in evidence on one side, or both, or on each side
separately. Heald v. Thing, 45 Me. 396; People v.
Sanchez, 22 N. Y. 147; Bonard's Will, 16 Abb. Pr.
N. S. 128; People v. Lake, 12 N. Y. 358; Woodbury
v. Obear, 7 Gray, 467; Com. v. Rogers, 7 Met. 500.
A non-professional witness may testify to facts
within his own knowledge and after he has shown
means of forming an impression, he may be asked
the impression made on his mind at the time by the
acts and declarations as to mental soundness. He
cannot express a general opinion as to sanity nor
his opinion independently of stating facts and cir-
cumstances. Clapp v. Fullerton, 34 N. Y. 190;
Pelamourges v. Clark, 9 Iowa, 17; Robinson v.
Adams, 62 Me. 369, 16 Am. Rep. 473; Cram v.
Cram, 33 Vt. 15; Dicken v. Johnson, 7 Ga. 484: De
Witt v. Bailey, 17 N. Y. 340; Irish v. Smith, 8
Serg. & R. 578; Hickman v. State, 38 Tex. 190.

Opinions as to sanity: exhaustive review-see notes to Ryder v. State, 38 L. R. A. 721; Burt v. State, 39 L. R. A. 305.

of plaintiffs alone they all swore that Hall was sane when he executed the power.

The statute of limitations of 1855 was pleaded, but being abandoned below, no ruling upon it was asked. The statute of 1864 was. there relied upon. In this court the statute of 1864 is in turn abandoned, and that of 1855 is now relied upon.

The statute of 1855 is inapplicable, because this case comes within its exception or proviso. The statute provides that "No action for the recovery of real property or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor was seised or possessed of the premises in question, within five years before the commencement of such action; provided, however, that an action may be maintained by a party claiming such real estate, or the possession thereof under title derived from the Spanish or Mexican governments, or the authorities thereof, if such action be commenced within five years after final confirmation of such title by the United States or its legally constituted authorities."

Stat. Cal. App. 11, 1855, 109; Hittel, Dig. Stat. § 4348, n.

The title of John Hall was derived from the Mexican or Spanish government, through a grant from the pueblo of San Francisco.

"The language of the proviso clearly covers every case of title derived from the Spanish or Mexican governments then (1855) existing in contemplation of law. There is no room for supposing that any class of cases was omitted, to be provided for in some other section."

Richardson v. Williamson, 24 Cal. 300. "The exception applies in cases in which the defendant claims under the same grant, and does not contest the validity of the Spanish or Mexican title." Id. pp. 304, 305.

That the title of the pueblo of San Francisco, under which the plaintiffs below claimed, is derived from the Spanish or Mexican governments, is no longer an open question.

Townsend v. Greely, 5 Wall. 353, 18 L. ed. 548; see, also, decree of confirmation of the circuit court of the United States for the district of California in case of U. S. v. San Francisco, dated May 18, 1865; Grisar v. McDowell, 6 Wall. 363, 18 L. ed. 863; act of Cong. Mar. 6, 1866.

That the title of the city was not confirmed until 1865 by the circuit court, or perhaps until 1866 by act of Congress, was proved on the trial.

See Davis v. Davis, 26 Cal. 45.

The action was brought within five years after such confirmation, and the statute of 1855 is no bar.

|

There can be no power of attorney executed without reason, for the authority delegated is an authority to contract and to convey, and as he who has no reason can neither contract nor convey, he can delegate no such power. Qui facit per alium, facit per se, but he who by himself cannot do a certain act, cannot do it by another.

There can be no contract, except there is an assent of two or more minds to do or not to do a particular thing. A "non compos mentis," within the legal acceptation of the words, has no mind, and it is as impossible for an express contract to exist between such an one and a person having reason, as between a brute and

a man.

Osterhout v. Shoemaker, cited in a note to Blanchard v. Nestle, 3 Den. 37.

A lunatic is not amenable to the criminal law, for, as he has no reason, the criminal law does not apply to him.

The principle for which we contend, viz.: that the acts of a lunatic are absolutely void, is attested by all the decisions of the English and American courts, until within a comparatively recent period. That a man presupposed to have no reason can perform reasoning acts is a discovery of very modern date.

The earlier English lawyers, who trusted more to logic than to cases, made no such mistake. Consider the reasoning of the court in Beverley's Case, 4 Coke, 124.

It desired to make the act of the lunatic binding; but, instead of adopting the modern improvement "That a lunatic could and did bind himself by the exercise of a reason which he did not have," the court held, in effect, that although the act of the lunatic was void in its operation, for want of reason to make it, yet, as it was a principle of the English law, that a man should not stultify himself, the lunatic was estopped from proving his lunacy. The existence of the maxim being conceded, the logic was faultless.

There is a class of cases frequently cited as against our position which may properly be considered and disposed of here. They are such as Jackson v. Gumaer, 2 Cow. 552; Ingraham v. Baldwin, 12 Barb. 9; S. C., 9 N. Y. 45.

These are suits brought upon a title to real estate or personal property, derived from a lu natic, and the defendant has set up the lunacy to defeat the title, claiming that, as the act of the lunatic was void, no title passed, and the plaintiff could not recover. Courts have seen the injustice of allowing the plaintiff's just claim to be so defeated and, at the same time, have thought that, if they held the conveyance or contract void, such would be the result; and so, to escape a dilemma, more apparent than real, they have said the conveyance was voidable only. Whereas, had they said: "Lunacy is a privilege, personal to the lunatic and his representatives, and given for his and their protection; and, whether he was a lunatic or The jury may have concluded that the plain-not, is of no concern to the defendant, as he is tiff's ancestor, predecessor or grantors had an actual possession within five years before bring ing the action, and so the statute did not apply. This the jury had a right to find; and as the evidence on this point is not all here, this court cannot reverse because the verdict was contrary to the weight of evidence.

Again; so far as the record shows, the court below may have instructed the jury that the statute of 1855 did apply, if there was an adverse possession by defendants for five years preceding suit brought.

estopped from proving lunacy," the cases would not only have been decided according to law, but also according to logic.

Burke v. Allen, 9 Fost. 107.

There are other classes of cases where courts have said that contracts of lunatics were voidable. They are of three kinds: 1. Where lunatics

have purchased necessaries; or 2. Where they have entered into contracts which, in good faith, they ought to be compelled to perform, because they received the consideration; or, 3. Where it is for their interest to have contracts which they have made, specifically executed and the defendants have refused to perform. Bagster v. Earl of Portsmouth, 7 Dowl. & Ryl. 618; Pearl v. McDowell, 3 J. J. Marsh. 662, are fair specimens of the cases of the first class. I have not found any cases of the second and third classes; but if such exist, they do not, of necessity, determine that the conveyance of a lunatic has in its own nature any operative effect, because they could be decided on the ground stated.

On principle, all conveyances, deeds and contracts of a lunatic are, in their nature, absolutely void and not susceptible of ratification, because the lunatic had no reason with which to make them; but, in consequence of the presumption of sanity, all conveyances, deeds and contracts are presumed valid; and where courts consider it for the benefit of the lunatic, they make use of the law of estoppel, to prevent him, and also to prevent others, from proving that these prima facie valid instruments were, from their nature, void.

In the earlier periods of the English common law, all conveyances were divided into two eral classes:

led astray. Others have decided contrary to his authority.

Thus, in the Matter of DeSilver, 5 Rawle, 112, Ch. J. Gibson says: "The authorities distinctly show that the feoffment and livery of a lunatic or madman are not void, but voidable, etc. The defect in the argument is that it fails to prove that a deed of bargain and sale, by which he holds, is equivalent in all respects to a feoffment, etc. At common law the feoffment of a madman, as shown upon the argument, is only voidable, but his deed is absolutely void."

Rogers v. Walker, 6 Pa. 371, was an action of ejectment by a lunatic. Ch. J. Gibson says: "The direction that the plaintiff might recover back the land conveyed by her when insane, without restoring the purchase money, or compensating the defendants for improvements, was entirely proper. Since the time of Thompson v. Leach, Carth, 435, 2 Salk. 427, it has been held that a lunatic's conveyance, executed by sealing and delivery of it only, is absolutely void as to third parties, and why not as to the grantor ?"

Mr. Justice Strong delivered the opinion of the court:

The prominent question in this case is whether a power of attorney executed by a lunatic is void, or whether it is only voidable. The cirgen-cuit court instructed the jury that a lunatic or insane person, being of unsound mind, is incapable of executing a contract, deed, power of attorney, or other instrument requiring volition and understanding, and that a power of attor ney executed by an insane person, or one of unsound mind, is absolutely void. To this instruction the defendant below excepted, and he has now assigned it for error.

1. Those which take effect from delivery made propriis manibus, such as feoffments with liberty of seisin.

2. All other conveyances, such as surrenders, grants, deeds, powers of attorney, etc.

In the time of Beverley's Case, 4 Coke. 124, whatever was the form of the conveyance, whether by feoffment, by grant, or under a power of attorney, it was conclusive upon the lunatic, by reason of that law of estoppel which prevented his proving his own lunacy; the maxim was that "No man should be allowed to stultify himself."

Subsequently, the law was so modified that lunatics were permitted to plead and prove their lunacy; and a common-law writ was allowed them, by which to recover their estates, known as the writ "Dum fuit non compos mentis." See, Fitzherbert, De natura Brevium, 202, f. The leading case is that of Thompson v. Leach, Carth. 435.

Looking at the subject in the light of reason, it is difficult to perceive how one incapable of understanding and of acting in the ordinary affairs of life, can make an instrument, the effica cy of which consists in the fact that it expresses his intention, or more properly, his mental conclusions. The fundamental idea of a contract is that it requires the assent of two minds. But a lunatic, or a person non compos mentis, has nothing which the law recognizes as a mind, and it would seem, therefore, upon principle, that he cannot make a contract which may have any efficacy as such. He is not amenable to the criminal laws, because he is incapable of discrimiYates v. Boen, 2 Str. 1104, was an action of nating between that which is right and that debt on articles; the plea was non est factum; which is wrong. The government does not hold lunacy was offered in evidence. If these arti-him responsible for acts injurious to itself. cles had been voidable, it would have been necessary to plead lunacy specially; but if void, lunacy was competent under the plea. The Chief Justice was at first inclined to exclude it; but, upon consideration of Thompson v. Leach, Carth. 435, and Smith v. Carr, Hard. 308, he admitted the evidence, and the plaintiff was defeated.

1 Ch. Pl. 470-474; Cole v. Robbins, Bull. N. P. 172; Cole v. Delawn, 3 Keb. 228; Gilbert, Law of Ev. 165; 12 Vin. Abr. 151; Zouch v. Parsons, 3 Burr. 1805.

The case of Ball v. Mannin, House of Lords in 1829, 1 Dow. & Cl. 380, affirms the doctrine of Thompson v. Leach, Carth. 435.

Some American judges not having access to . the English reports, and relying upon the au thority of Blackstone's great name, have been

Why, then, should one who has obtained from him that which purports to be a contract, be permitted to hold him bound by its provisions, even until he may chose to avoid it? If this [*21 may be, efficacy is given to a form to which there has been no mental assent. A contract is made without any agreement of minds. And as it plainly requires the possession and exercise of reason quite as much to avoid a contract as to make it, the contract of a person without mind has the same effect as it would have, had he been in full possession of ordinary understanding. While he continues insane he cannot avoid it; and if, therefore, it is operative until avoided, the law affords a lunatic no protection against himself. Yet a lunatic, equally with an infant, is confessedly under the protection of courts of law as well as courts of equity. The

contracts of the latter, it is true, are generally held to be only voidable (his power of attorney being an exception). Unlike a lunatic, he is not destitute of reason. He has mind, but it is im mature, insuflicient to justify his assuming a binding obligation. And he may deny or avoid his contract at any time, either during his minority or after he comes of age. This is for him a sufficient protection. But as a lunatic cannot avoid a contract, for want of mental capacity, he has no protection if his contract is only voidable.

voidable, or whether it was absolutely void. The
grantor had a life estate upon which were de-
pendent contingent remainders, and he made a
leed of surrender. If his deed was at any time
effective before the contingency happened, it
23*] merged *the tenancy for life, and de-
stroyed the contingent remainders, and though
the deed might afterwards be avoided by any
means in law, yet the contingent remainders,
being once extinct, could not be revived by any
matter ex post facto. It was necessary, there-
fore, to determine whether the deed was a nul-
lity or whether it was good until avoided. The
court resolved that the deed was void, ab initio,
because of the grantor's lunacy. It was said
that "there is a difference between a feoffment
and livery made propriis manibus of an infant,
and the bare execution of a deed by sealing and
delivery thereof, as in cases of grants, surrend-
ers, releases, etc., which have their strength
only by executing them, and in which the form-
ality of livery of seisin is not so much regarded
in the law, and, therefore, the feoffment is not
void, but voidable; but surrenders, grants, etc.,
of an idiot are void ab initio." The case is a
leading one, and it is in some respects more
fully reported in 3 Salk. 300. There it appears
not only that the distinction mentioned is rec-
ognized, but that Holt, Ch. J., declared the deed
of a person non compos mentis to be void; that
if he grants a rent, and the grantee distrains
for arrears, he may bring trespass; that his
letter of attorney, or his bond, are void, be-
cause, as he stated, the law had appointed no
act to be done for avoiding them. 2 Vent. 198.
Thompson v. Leach has never been disturbed,
and, so far as we know, has never been doubted.
It was followed by the case of Yates v. Boen, in
2 Strange, 1104, which was an action of debt
upon articles. The defendant pleaded "non est
factum," and offered to give lunacy in evidence.
Upon the authority of Thompson v. Leach, and
Smith v. Carr, decided in 1728, the evidence
was received.

It must be admitted, however, that there are decisions which have treated deeds and conveyances of idiots and lunatics as merely voidable, and not void. In Beverley's Case, 4 Co. 123, b, which was a bill for relief against a bond made by Snow, a lunatic, it was resolved that every deed, feoffment, or grant, which any man "non compos mentis" makes, is avoidable, and yet shall not be avoided by himself, because it is a maxim of law that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify himself and disable his own person. A second reason given for the rule was, "because when he recovers his men.ory he cannot know what he did when he was non compos mentis." Neither of these reasons are now accepted, and the maxim no longer exists. There were other things ruled in Beverley's Case, among which were these: that the disability of 22*] a lunatic is *personal, extending only to the party himself, except that it extends to privies in tenure, as lord by escheat, and privies in estate, as tenant in tail; but that privies in blood, as heirs, or privies in representation, as executors or administrators, might show the disability of the ancestor, or testator, or intestate. It was also resolved that acts done in a court of record were not avoidable even in equity. Lord Coke, in commenting on the case, remarked that "As to others there is a great | difference between an estate made in person and by attorney; for if an idiot, or non compos mentis, makes a feoffment in fee in person, and The doctrine of Thompson v. Leach was asdies, his heir within age, he shall not be inserted also in Ball v. Mannin, 1 Dow & Clark, ward, or if he dies without heir the land shall 380, decided in the House of Lords in 1829. In not escheat; but if the feoffment is that case the sole question presented was, by made by letter of attorney, although the feoffer agreement of counsel, whether the deed of a shall never avoid it, yet after his death, as to person non compos mentis was invalid at law. all others, in judgment of law, the estate is In the inferior court the judge had charged the void, and, therefore, in such case, if his heir is jury *that "to constitute such unsound- [*24 within age, he shall be in ward; or, if he dies ness of mind as should avoid a deed at law, without heir, the land shall escheat." Such the person executing such deed must be incapaalso is the rule as stated in Fitzherbert's Nat. ble of understanding and acting in the ordinary Bre., 202, c. This is plainly a recognition of the affairs of life," and refused to charge that the principle that the letter of attorney of an idiot unsoundness of mind must amount to idiocy. or lunatic is void, though he may not be per- The ruling was sustained by the Court of mitted himself to assert its nullity. His heir, King's Bench in Ireland and, on writ of error, and all others, may. The doctrine is also as- by the Exchequer Chamber. The case was ther serted that as against the heirs of a lunatic his removed to the House of Lords, and the judg deed is invalid, and this, we think, has been ment was affirmed. It is, therefore, the settled steadily maintained in England. law of England, and it has been since the deci sion in Thompson v. Leach, that while the feoffment of an idiot, or lunatic, is only voidable, his deed, and especially his power of attorney, are wholly void. And now by act of Parliament, 7th and 8th Vict. chap. 76, sec. 7, his conveyance by feoffment, or other assurance, is placed on the same footing with his release or grant.

In Thompson v. Leach, reported in Carthew, 438, 468, and in Comberbach, 211, 235, a clear distinction was taken between the feoffment of a lunatic taking effect by livery of seisin, and his deed of bargain and sale, his surrender or grant. The former was held to be voidable only because of the solemnity of the livery, while the latter were held to be void. The case was ejectment brought by a lunatic's heirs, and the controlling question was whether his deed was only

Sir William Blackstone, it is true, appears to 'have overlooked the distinction made in Thompson v. Leach; and in his Commentaries