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it has sometimes been stated that the avoidance of any
conveyance must be by entry or some other act of
equal notoriety with the conveyance.^^ The modern



23. Patterson v. Lawrence, 90
111. 174; Asher v. Bennett, 143
Ky. 361, 136 S. W. 879; Ostrander
V. Quin, 84 Miss. 230, 105 Am.
St. Rep. 426, 36 So. 257; Ryan
V. Growney, 125 Mo. 474, 28 S.
W. 189, 755; Hayes v. Parker, 41
N. J. Eq. 630, 7 Atl. 511. See
Vogelsang v. Null, 67 Tex. 465,
3 S. W. 451; Thormaehlen v.
Kaeppel, 86 Wis. 378, 56 N. W.
1089; 1 Story, Eq. Jur. § 385; 2
Pomeroy, Eq. Jur. § 945.

24. Sims V. Everhardt, 102 U.
S. 300, 26 L. Ed. 87; Watson v.
Billings, 38 Ark. 278, 42 Am.
Rep. 1; Beauchamp v. Bertig, 90
Ark. 351, 23 L. R. A. (N. S.)
659, 119 S. W. 75; Wieland v.
Kobick, 110 111. 16, 51 Am. Rep.
676; Merriam v. Cunningham, 11
Cush. (Mass.) 40; Ridgeway v.
Herbert, 150 Mo. 606. 73 Am.
St. Rep. 464, 51 S. W. 1040;
StudweU V. Shapter, 54 N. Y. 249;
International Text Book Co. v.



Connelly, 206 N. Y. 188, 99 N. E.
722; Carolina Interstate Building
& Loan Ass'n v. Black, 119 N.
C. 323, 25 S. E. 975. In some
states the statute prohibits the
disaffirmance of a contract by an
infant if the action of the other
party in entering therein was in-
duced by the infant's representa-
tions. 1 Stimson's Am. St. Law
§ 6602(D).

25. Greenwood v. Coleman, 34
Ala. 150; Watson v. Billings, 38
Ark. 278, 42 Am. Rep. 1; Law v.
Long, 41 Ind. 586; Hoyt v. Swar,
53 111. 134; Walsh v. Young, 110
Mass. 396; Sandford v. McLean,
3 Paige (N. Y.) 117, 23 Am.
Dec. 773; Epps v. Flowers, 101
N. C. 158, 7 S. E. 680; Hughes
v|. Watson, 10 Ohio, 127; Mc-
Morris v. Webb, 17 S. C. 558, 43
Am. Rep. 629.

26. Jackson v. Burchin, 14
Johns. (N. Y.) 124; Bool v. Mix,
17 Wend. (N. Y.) 119, 31 Am.



§ 594]



Personal Disabilities.



23.?5



view generally is, however, that any act indicative of an
intention to repudiate the conveyance is sufficient.-'^ Ac-
cordingly, an avoidance of the conveyance has been
held to have been effected, not only by an entry upon
the land,-^ but also by an action of ejectment by the in-
fant to recover the land,^^ a suit by him to set aside
the conveyance,^'' a conveyance to another person in-
consistent with the former conveyance,"^ or a notice to
his grantee of an intention to disaffirm the conveyance.^-



Dec. 285; Rogers v. Hurd, 4 Day
(Conn.) 57; O'Donohue v. Smith,
130 N. Y. App. Div. 214, 114 N.
Y. Supp. 536. See Irvine v.
Irvine, 9 Wall. (U. S.) 617, 19
L. Ed. 800.

27. McCarty v. Nicrosi, 72
Ala. 332, 47 Am. Rep. 418; Long
v. Williams, 74 Ind. 115; Singer
Mfg. Co. V. Lamb, 81 Mo. 221;
State V. Plaisted, 43 N. H. 413;
Drake's Lessee v. Ramsay, 5
Ohio, 252.

28. Inhabitants of Worcester
V. Eaton, 13 Mass. 371, 7 Am.
Dec. 155; Green v. Green. 69 N.
Y. 553, 25 Am. Rep. 233; Shrock
v. Cowl, 83 Ind. 243; Tucker v.
Moreland, 10 Pet. (U. S.) 58, 9
L. Ed. 345.

29. Cole V. Pennoyer, 14 111
158; Chadbourne v. Rackliff, 30
Me. 854; Conn v. Boutwell, 101
Miss. 353, 58 So. 105; Craig v.
Van Bebber, 100 Mo. 584, 18 Am
St. Rep. 569, 13 S. W. 906;
Clark V. Tate, 7 Mont 171, 14
Pac. 761; Birch v. Linton, 78
Va. 584, 49 Am. Rep. 381. But
occasionally it has been held that
there must be a disaffirmance
before suit. Law v. Long, 41
Ind. 586; Bool v. Mix. 17 Wend.
(N. Y.) 119, 31 Am. Dec. 285;
Voorhies v. Voorhies, 24 Barb.



(N. Y.) 150; Tomczek v. Wieser,
58 N. Y. Misc. 46, 108 N. Y.
Supp. 784.

30. Watson v. Billings, 38 Ark.
278, 42 Am. Rep. 1; Slater v.
Rudderforth, 25 App. Cas. (D.
C.) 497; Tunison v. Chamblin,
88 111. 378; Gillespie v. Bailey,
12 W. Va. 70, 29 Am. Rep. 445.
Contra, O'Donohue v. Smith, 130
N Y. App. Div. 214, 114 N. Y.
Supp. 536.

31. Tucker v. Moreland, 10
Pet. (U. S.) 58, 9 L. Ed. 345;
Black V. Hills, 36 111. 376. 87 Am.
Dec. 224; Ison v. Cornett, 116
Ky. 92, 75 S. W. 204; Corbett v.
Spencer, 63 Mich. 731, 30 N. W.
385; Peterson v. Laik, 24 Mo.
541, 69 Am. Dec. 441; Ridgeway
v. Herbert, 150 Mo. 606. 73 Am.
St. Rep. 464. 51 S. W. 1040;
State V. Plaisted, 43 N. H. 413;
Mustard v. Wohlford's Heirs, 15
Graft. (Va.) 329, 76 Am. Dec.
209. See notes 18 Am. St. Rep.
665, 3 Ann. Cas. 593.

32. Scranton v. Stewart, 52
Ind. 68; Schroyer v. Pittenger,
31 Ind. App. 158, 67 N. E. 475;
Roberts v. Wiggin, 1 N. H. 73,
8 Am. Dec. 38; McCarty v. Wood-
stock Iron Co., 92 Ala. 463. 12
L. R. A. 136, 8 So. 417. That a
denial in a pleading of the exe-



2336



Eeal Pbopeett.



[§ 594



The conveyance cannot ordinarily be avoided by the
infant until after he arrives at the age of majority.^^
His infancy may however, even before that time, be as-
serted by him as a defense to an action to foreclose a
mortgage made by him,^^ and it has been said that if
an infant makes a conveyance he may, even during in-
fancy, enter and enjoy the profits.^^ It he dies before
either repudiating or affirming the conveyance, his
heirs or personal representatives, whichever would bo
otherwise entitled to the land, may repudiate it."*'

In order that one may avoid a conveyance made by
him during infancy, it is not necessary that he return the
consideration received by him, unless he still has the
specific consideration received.^''^



cution of a deed involves a
repudiation thereof, see Ricks v.
Wilson, 154 N. C. 282, 70 S. E.
476.

33. Sims v. Everhardt, 102 U.
S. 300, 26 L. Ed. 87; Tucker v.
Moreland, 10 Pet. (U. S.) 58, 75,
9 L. Ed. 345; Harrod v. Myers,
21 Ark. 592, 76 Am. Dec. 409;
Welch v. Bunce, 83 Ind. 382;
Chandler v. Simmons, 97 Mass.
508, 93 Am. Dec. 117; Shipley v.
Bunn, 125 Mo. 445, 28 S. W.
754; Emmons v. Murray, 16 N.
H. 385; Bool v. Mix, 17 Wend.
(N. Y.) 119, 31 Am. Dec. 285;
Zouch V. Parsons, 3 Burrows,
179.

34. Watson v. Renderman, 79
Conn. 687, 66 Atl. 515; Schneider
V. Staihr, 20 Mo. 269.

35. Zouch V. Parsons, 3 Bur-
rows, 1794, 1808; Bool v. Mix, 17
Wend. (N. Y.) 119, 31 Am. Dec.
285; Cummings v. Powell, 8 Tex.
80.

36. Bozeman v. Browning, 31
Ark. 364; Illinois Land & Loan
Co. V. Bonner, 75 111. 315; Gillen-



waters v. Campbell, 142 Ind. 529,
41 N. E. 1041; Austin v. Trustees
of Charlestown Female Seminary,
8 Mete. (Mass.) 196, 41 Am.
Dec. 497; Harvey v. Briggs, 68
Miss. 60, 10 L. R. A. 62, 8 So.
274; Singer Mfg. Co. v. Lamb, *81
Mo. 221; Blake v. Hollandsworth,
71 W. Va. 387, 43 L. R. A. (N
S.) 714, 76 S. E. 814.

37. American Freehold Land
.Mortgage Co. v. Dykes, 111 Ala.
178, 56 Am. St. Rep. 38, 18 S<.v
292; Stull V. Harris, 51 Ark.
294; Putnal v. Walker, 61 Fla.
720. 36 L. R. A. (N. S.) 33, 55
So. 844; Chandler v. Simmoi;s.
Stl Mass 508, 93 Am. Dec. LIT:
Brantley v. Wolf, 60 Miss. 420;
Ridgeway v. Herbert, 150 Mo.
616, 70 Am. St. Re^. 464. 51 S.
W. 1040; Englebert v. Troxell.
46 Neb. 195, 26 L. R. A. 177, 42
Am. St. Rep. 665, 58 N. W. 853;
Green v. Green. 69 N. Y. 553, 25
Am. Rep. 233; Bullock v. Sprowls,
93 Tex. 188, 47 L. R. A. 326,
77 Am. St. Rep. 849, 54 S. W. 661.
In Mac Greal v. Taylor, 167 U.



§ 594] Personal Disabilities. 2337
Ratification. If the infant, after arriving at



majority, affirms or ratifies the conveyance by unequiv-
ocally recognizing it as valid, he is thereafter precluded
from repudiating it.^** The effect of such a ratification
is to take from the conveyance the infirmity therein
arising from the infancy of the grantor,^^ and a
decision to the effect that, in spite of such ratification,
the grantor can render the conveyance invalid by making
a conflicting conveyance to a bona fide purchaser for
value,^° would seem to be open to serious question, in
the absence of any statutory requirement that the rati-
fication of a conveyance by an infant shall appear on the
records,

-Acquiescence. It has been quite frequently said



that the grantor must repudiate or disaffirm his con-
veyance within a reasonable time after his arrival at
majority, and that his failure so to do involves a rati-
fication of the conveyance,^^ a view which is based on
the possible hardship upon the grantee involved in the

S. 688, 42 L. Ed. 326 an infant 39. See 18 Am. St. Rep. 700,
having, by his trust deed, pro- note to Craig v. Van Bebber.
cured money which he applied 40. Black v. Hills, 36 111. 376,
to improving the property and 87 Am. Dec. 224.
paying off incumbrances, it was 41. Hastings v. Dollarhide, 24
held that, on disaffirmance of Cal. 196; Kline v. Beebe 6
the deed, the lender could follow Conn. 494; Bentley v. Greer, 100
the money into the property, in Ga. 35, 27 S. E. 974; Keil v. Heal-
so far as this did not place the ey, 84 111. 104, 25 Am. Rep. 434 ;
grantor in a worse position than Sims v. Bardoner, 86 Ind. 87, 44
when he made the deed. Am. Rep. 263; Goodnow v. Em-
38. Davidson v. Young, 38 111. pire Lumber Co., 31 Minn. 468,
145; Ward v. Ward, 143 Ky. 91, 47 Am. Rep. 798, 18 N. W. 283;
136 S. W. 137; Keegan v. Cox, Ward v. Laverty, 19 Neb. 429, 27
116 Mass. 289; Allen v. Poole, 54 N. W. 393; Weeks v. Wilkins, 134
Miss. 323; Lacy v. Pixler, 120 N. C. 516, 47 S. E. 24; Dolph
Mo. 383, 25 S. W. 206; Emmons v. Hand, 156 Pa. St. 91, 36 Am.
V. Murray, 16 N. H. 385; Cox v. St. Rep. 25, 27 Atl. 114; Scott v.
Gowan, 116 N. C. 131, 21 S. E. Buchanan, 11 Humph. (Tenn.)
108; Tolar v. Marion County 468; Ferguson v. Houston, E. &
Lumber Co., 93 S. C. 274, 75 S. W. T. Ry. Co., 73 Tex. 344, 11 S.
E. 545. W. 347; Bigelow v. Kinney 3
3 R. P.— 5



2338 Real Property. [§ 594

continued possibility of disaffirmance, and perhaps, to
some extent, upon the desirability, as a matter of public
policy, of removing, so far as possible, any uncertainty
as to titles. A contrary view has, however, been as-
serted by a number of courts, to the effect that the
grantor's mere failure to act does not, in the absence of
other circumstances, affect his right to repudiate the
conveyance, and that there is no restriction in this re-
gard as to the time within which he must repudiate it,
other than that imposed by the statute of limitations.*^
In a few states there is a statutory provision requiring
the repudiation to take place within a reasonable time."*^
Apart from any question of intentional ratification, or
of repudiation within a reasonable time, it has been rec-
ognized that if the grantor, after arriving at majority,
stands by without asserting any claim, though knowing
that his grantee or another is expending money on the
supposition that the conveyance is valid, he may be es-
tojDped thereafter to deny its validity.^"*

If one is under the disability of coverture at the
time of her arrival at the age of majority, she cannot,

Vt. 353, 21 Am. Dec. 589; Tor- inger v. Welch, 15 Ohio, 156, 45

maehlen v. Kaeppel, 86 Wis. Am. Dec. 565. See notes 18 Am.

378, 56 N. W. 1089. St. Rep. 675, 15 Harv. Law Rev.

42. Sims V. Everhardt, 102 749, 9 Columbia Law Rev. 362.
U. S. 300, 26 L. Ed. 87; Eureka 43. 1 Stimson's Am. St. Law,

Co. V. Edwards, 71 Ala. 248, 46 § 6602 (C).

Am. Rep. 314; Putnal v. Walker, 44. Sims v. Bardoner, 86 Ind.

61 Fla. 720, 36 L. R. A. (N. S.) 87, 44 Am. Rep. 263; Logan v.

33, 55 So. 844; Syck v. HeUier, Gardner, 136 Pa. St. 588. 20 Am.

140 Ky. 388, 131 S. W. 30; Davis St. Rep. 939, 20 Atl. 625; Davis

V. Dudley, 70 Me. 236, 35 Am. v. Dudley, 70 Me. 236, 35 Am.

Rep. 318; Donovan v. Ward, 100 Rep. 318; Lacy v. Pixler, 120 Mo.

Mich. 601, 59 N. W. 254; Shipp 383, 25 S. W. 206; Dolph v. Hand,

V. McKee, 80 Miss. 741, 92 Am. 156 Pa. St. 91, 36 Am. St. Rep.

St. Rep. 616, 31 So. 197; Peter- 25, 27 Atl. 114; Wheaton v. East,

son V. Laik, 24 Mo. 541, 69 Am. 5 Yerg. (Tenn.) 41, 26 Am. Dec.

Dec. 441; Lacy v. Pixler, 120 Mo. 251. See Terrell v. Weymouth,

383, 25 S. W. 206; Emmons v. 32 Fla. 255, 37; Am. St. Rep. 94,

Murray, 16 N. H. 385; McMurray 13 So. 429; Burkhard v. Crouch,

••. McMurray, 66 N. Y. 175; Cres- 169 N. Y. 399, 62 N. E. 431.



"^ 594] Personal Disabilities. 233^

by lier failure, during the continuance of lier coverture,
to avoid a conveyance made by her during infancy, be
regarded as affirming it.^^

Statute of limitations. The right to disaffirm

a conveyance made by an infant may be barred by tlie
statute of limitations.^^ Occasionally the courts have re-
ferred to the statute limiting the time for the recovery
of land as controlling in this regard,''*' but the character
of the proceeding by which the right of disaffii-manoe is
asserted would presumably, in some jurisdictions, be
regarded as the controlling consideration.'*'^

Since the grantor cannot disaffirm his conveyance
until his arrival at majority,^ ^ it would seem that his
right of action to assert his rights cannot be regarded as
accruing until then, and that consequently the case is not
one of the accrual of a cause of action during infancy,
within the provision of the statute giving an infant in
favor of whom a right of action has accrued a limited
period after his arrival at majority in which to sue.^^
In accord with this view are occasional statements that
the statute begins to run against the grantor only upon
his arrival at majority. •''*' There are, however, decisions

45. Sims V. Everhardt, 102 U. 44 Am. Rep. 263; Hughes v.
S. 300, 26 L. Ed. 87; Stull v. Watson, 10 Ohio, 127; Robinson
Harris, 51 Ark. 294; Wilson v. v. Allison, 192 Mo. 3G6, 91 S. W.
Branch, 77 Va. 65, 46 Am. Rep. 115.

709; Sims v. Bardoner, 86 Ind. 47. As in Hoffert v. Miller, 86

87, 44 Am. Rep. 263; Llnville v. Ky. 572, 6 S. W. 447; O'Donohiio

Greer, 165 Mo. 380, 65 S. W. 579; v. Smith, 130 N. Y. App. Div.

Epps V. Flowers, 101 N. C. 158, 214, 114 N. Y. Supp. 536.

7 S. E. 680; Gaskins v. Allen, 1X7 48. Ante, this section, note 33.

N. C. 426. 49 S. E. 919. 49. See O'Donohiie v. Smith,

45a. Eureka Co. v. Edwards, 130 N. Y. App. Div. 214, 114 N.

71 Ala. 248, 46 Am. Rep. 314; Y. Supp. 536; note 9 Columbia

Prout V. Wiley, 28 Mich. 164; Law Rev. at p. 362.

Donovan v. Ward, 100 Mich. 601, 50. Wells v. Seixas (C. C.) 24

59 N. W. 254; Shipp v. McKee, Fed. 82; Bozeman v. Browning.

80 Miss. 741, 92 Am. St. Rep. 31 Ark. 364; Hoffert v. Miller, 80

616, 32 So. 281; Lacy v. Pixler, Ky. 572, 6 S. W. 447; Compare

120 Mo. 383, 25 S. W. 206. Shipp v. McKee. 80 Miss. 741. 92

46. Sims V. Bardoner, 86 Ind. Am. St. Rep. 616, 32 So. 281.



2340 Eeal Property. [§ 594

in which the grantor's right of action to assert his rights
is regarded as limited by the statute defining the period
within which one can sue after attaining his majority
on a cause of action which accrued during his minori-
ty.-^ '^ And occasionally it has been decided that such
statute should be referred to, as covering an analogous
case, for the purpose of ascertaining the "reasonable
time "^2 within which the conveyance must be dis-
affirmed.^^

Purchase money mortgage. While a mortgage



by an infant is ordinarily voidable, his right to avoid
a purchase money mortgage made by him to his vendor
is dependent upon his relinquishment of his right to the
land, that is, the conveyance to him and his mortgage
thereon constitute in legal effect but one transaction,
and he cannot claim the benefit of the conveyance and
at the same time repudiate the mortgage.^^ Conse-
quently if, after majority, he ratifies his acquisition of
the land by disposing of it to another^' or by retaining
possession of the land,^''^ he thereby ratifies the mortgage.
Likewise, if at the time of the acquisition of the property
by an infant he makes a mortgage to a person other than
the vendor, to secure money loaned to him, and the con-
veyance to him and the mortgage can be regarded as
parts of one transaction, the mortgage cannot be repu-
diated so long as the property is retained.^^ And if an

51. Kountz V. Davis, 34 Ark. 55. Hubbard v. Cummings, 1
590; Putnal v. Walker, Gl Fla. Me. 11; Uecker v. Koehn, 21 Neb.
720,' 36 L. R. A. (N. S.) 33, 55 559, 59 Am. Rep. 849, 32 N. W.
So. 844; Robinson v. Allison, 192 583.

Mo. 366, 91 S. W. 115. 56. Robbins v. Eaton, 10 N.

52. Ante, this section, note 41. H. 561; Dana v. Coombs, 6 Me.

53. Blankenship v. Stout, 25 89; Boody v. McKenney, 23 Me.
111. 132; Weeks v. Wilkins, 134 517; American Freehold Land
N. C. 516, 47 S. E. 24. Mortgage Co. v. Dykes, 111 Ala.

54. Heath v. West, 28 N. H. 187, 56 Am. St. Rep. 38, 18 So.
101; Hubbard v. Cummings, 1 292.

Me. 11; Kenedy v. Baker, 159 Pa. 57. Thurstan v. Nottingham,

St. 146, 28 Atl. 252; Callis v. etc., Society (1902) 1 Ch. 1,

Day, 38 Wis. 643; Richardson (1903) App. Cas. 6; Ready v.

V. Boright, 9 Vt. 368. Pinkham, 181 Mass. 351, 63 N.



§ 594] Personal Disabilities. 2341

infant mortgages bis land in order to procure money
witli which to relieve the land of an existing lien, the
person lending the money may occasionally, even though
the mortgage is disaffirmed, assert a lien as against tlie
land, on the tlieory of subrogation.^^

Conveyance to infant. A conveyance to an in-
fant, like a conveyance by him, is voidable merely, and
must be repudiated by him within a reasonable period
after his arrival at full age.^^

-Transfer by will. The English Statute of Wills,



with its explanatory act passed two years later, ex-
cluded persons under twenty-one years of age from those
authorized to transfer lands by will, though males over
fourteen and females over twelve could at that time
transfer personalty.^°"^^ In this country, the statutes
of the various states are not uniform in regard to the
age at which one may make a will, a distinction some-
times existing between wills of real and personal
property in this regard, and sometimes not, and the re-
quired age of a female being in some states less than
that of a male. In a majority of the states, however,
a testator of either sex must be twenty-one years of
age.^^

E. 887; Dana v. Coombs, 6 Me. 59. Ketsey's Case, Cro. Jac.

89, 19 Am. Dec. 194. See notes, 320; American Freehold Land

14 Harv. Law Rev. at p 388; 15 Mortgage Co. v. Dykes, 111 Ala.

Id. at p. 494. Compare Citizens' 178, 56 Am. St. Rep. 38, 18 So.

Building & Loan Ass'n v. Arvin, 292; Boody v. McKenney, 23 Me.

207 Pa. 293, 56 Atl. 870. 517; Scanlan v. Wright. 13 Pick.

58. See Mac Greal v. Taylor, (Mass.) 523, 25 Am. Dec. 344;

167 U. S. 688, 42 L. Ed. 326; Ellis v. Alford, 64 Miss. 8, 1

Langdon v. Clayson, 75 Mich. So. 155; BaTcer v. Kennett, 54

204, 42 N. W. 805; United States Mo. 82; Robbins v. Eaton, 10 N.

Investment Corporation v. Ul- H. 561; Henry v. Root, 33 N. Y.

rickson, 84 Minn. 14, 87 Am. 526; Dewey v. Burbank, 77 N.

St. Rep. 326, 86 N. W. 613; C. 259; Johnston v. Furnier, 69

American Freehold Land Mort- pa. St. 449.

gage Co. V. Dykes, 111 Ala. 178, 60-61. 1 Jarman. Wills (5th

56 Am. St. Rep. 38, 18 So. 292. Ed.) 33, and note.

62. 1 Stimson's Am. St. Law,



2342



Real Propeety.



[§ 595



§ 595. Persons mentally incapacitated. In de-
termining whether a person has tlie mental capacity to
make a valid and binding conveyance, the only question
is whether he is able to clearly understand the nature
and consequences of the conversance, and the fact that
his mental powers are impaired, or that he is subject to
a delusion, if this is not such as to influence him in
making the conveyance, does not impair its validity.^'
One who, at the time of making a conveyance, is unable
to understand its nature and effect by reason of in-
toxication, stands, it seems, upon the same footing in
this regard as one who is otherwise mentally incapaci-
tated.^*

The authorities are not in accord as to the effect of
a conveyance inter vnws by a person mentally incapaci-
tated. According to some decisions, such a conveyance
is, like that of an infant, merely voidable,^^ unless a



§ 2602; 1 Woerner, Administra-
tion, § 20.

63. StanfiU v. Johnson, 159
Ala. 546, 49 So. 223; Doe d. Guest
V. Beerson, 2 Houst. (Del.) 246;
Clarke v. Hartt, 56 Fla 775, 47
So. 819; Lindsay v. Lindsey, 50
111. 79, 99 Am. Dec. 489; Saffer
V. Mast, 223 111. 108, 79 N. E.
32; Burgess v. Pollock, 53 Iowa,
273, 36 Am. Rep. 218, 5 N. W.
179; Altig V. Altig, 137 Iowa, 420,
114 N. W. 1056; Dennett v.
Dennett, 44 N. H. 531; Blakely
V. Blakely, 33 N. J. Eq. 502;
Nelson v. Thompson, 16 N. D.
295, 112 N. W. 1058; Corpora-
tion of Members Church of Jesus
Christ Latter Day Saints v.
Watson, 30 Utah, 126, 83 Pac.
731; Stewart v. Flint, 59 Vt. 144,
8 Atl. 801; Whittaker v. South-
west Virginia Improvement Co.,
34 W. Va. 217, 12 S. E. 507.

64. Dulany v. Green, 4 Har.



(Del.) 285; Harmon v. Johnston,
1 McArth. (Dist. Col.) 139;
Shackleton v. Sebree, 8 111. 616;
Harbison v. Lemon, 3 Blackf.
(Ind.) 51, 23 Am. Dec. 376;
Warnock v. Campbell, 25 N. J.
Eq. 485; Peck v. Gary, 27 N. Y.
9, 84 Am. Dec. 220; Spoonheim v.
Spoonheim, 14 N. D. 380, 104
N. W. 845; French's Heirs v.
French, 8 Ohio 214, 31 Am. Dec.
441; Burnham v. Burnham, 119
Wis. 509, 100 Am. St. Rep. 895.
97 N. W. 176.

65. Langley v. Langley, 45
Ark. 392; Jordan v. Kirkpatrick,
251 111. 116, 95 N. E. 1079;
Nichol V. Thomas. 53 Ind. 42;
Downham v. Holloway, 158 Ind.
626, 92 Am. St. Rep. 330. 64 N.
E. 82; Breckenridge's Heirs v.
Ormsby, 1 J. J. Marsh (Ky.)
236; Campbell v. Kerrick, 142
Ky. 279, 134 S. W. 186; Hovey
y. Hobson, 53 Me. 451; Riley v.



§ 595]



Personal Disabilities.



2343



guardian has been appointed for the grantor and his
property after judicial inquisition into his sanity, in
which case a conveyance subsequently made by him is
ordinarily regarded as absolutely void.'"' By oflier de-
cisions, a conveyance by one of unsound mind is ab-
solutely void,^'^ the logical result of which view would ])e
that it can be attacked not only by tlie grantor and per-
sons in privity with him, but also by third persons
generally, and, further that it can be ratified by the
grantor only by making another conveyance after his
restoration to sanity.

It has occasionally been asserted that the convey-
ance cannot be repudiated as against a bona fide pur-



Carter, 76 Md. 581, 19 L. R. A.

489, 35 Am. St. Rep. 443, 25 All.

667; Allis v. BiUings, 6 Mete.

(Mass.) 415, 39 Am. Dec. 1\^;

Jamison v. CuUigan, 151 Mo. 410.

52 S. W. 226; Eaton v. Eaton, 37

N. J. L. 108, 18 Am. Rep. TIC;

BHnn v. Schwarz, 177 N. Y. 252,

101 Am. St. Rep. 806, 69 N. E.

542; Riggan v. Green, 80 N. C.

236, 30 Am. Rep. 77; WiUiama v.

Sapieha, 94 Tex. 430, 61 S. W.

115; French Lumbering Co. v.
Thenault, 107 Wis. 627, 51 L.
R. A. 910, 83 N. W. 927. But,
even when this view was adopt-
ed, a conveyance by a married
woman was held to be absolutely
void if the statute required the
husband's joinder, and he was
insane at the time. Leggate v.
Clark, 111 Mass. 308.

66. Griswold v. Hunter, 3
Conn. 227; New England Loan
& Trust Co. v. Spitler, 54 Kan.
560, 38 Pac. 799; Hovey v. Hob-
son, 53 Me. 451, 89 Am. D^f'.
705; Wait v. Maxwell, 5 Pick.
(Mass.) 217; Thorpe v. Hansc^m,
64 Minn. 201, 66 N. W. 1; Eistoii



V. Jasper, 45 Tex. 409. An ad-
judication merely that the grac-
tor is insane, and a fit subject
for custody in a hospital for the
insane, does not have this effect.
Dewey V. Allgire, 37 Neb. S, 40
Am. St. Rep. 468, 55 N. W. 276;
Knox V. Haug, 48 Minn. 58, 50 N.
W. 934; Leggate v. Clark, 111
Mass. 308. It has been decided
that, if the guardianship has
been in effect abandoned, the
grantor having recovered his san-
ity, the conveyance will be sup-
ported, though the guardian has
not been discharged by judicial
action. Thorpe v. Hanscom, 64
Minn. 201, 66 N. W. 1; Elston v.
Jasper, 45 Tex. 409; Lower v.
Schumacher, 61 Kan. 625, 60
Pac. 538; Clay v. Hammond, 199
111. 370, 93 Am. St. Rep. 146, 65
N. E. 352.

67. Dexter v. Hall, 15 Wall.
(U. S.) 9, 21 L. Ed. 73; German
Sav. & Loan Soc. v. De Lashmutt
(C. C.) 67 Fed. 399; Galloway v.
Hendon, 131 Ala. 280, 31 So. 603;
Elder v. Schumacher, 18 Colo.
433. 33 Pac. 175; Sullivan v.



2344



Real Property.



[^ 595



chaser for value from the grantee,^^ but there are also
decisions to the effect that if the conveyance can be
avoided as against the original grantee, it can as
against any subsequent purchaser without reference to
his ignorance of the infirmity therein.^*^ It appears to
be agreed that the ignorance of the grantee at the time
of the transaction, although he paid a valuable con-
sideration, does not affect the right of the grantor to
repudiate the conveyance,"^^ except as, in some states,
the grantee is entitled to a return of the consideration
paid by him/^

Avoidance. In states where the conveyance



is regarded as voidable only, it may be avoided either
by the grantor after he has reacquired his mental
capacity, or by his heirs or personal representatives



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