I cannot agree with the majority of the court that it was error to cancel the lease of 1905 and the instrument of 1906.
It seems to be the opinion of the majority that the lease *Page 67 of 1905 is incontestable by Eliza Christian for the reason that it was taken in ignorance of her imbecility and was beneficial to her. It also seems to be the opinion of the majority that the instrument of 1906 is incontestable by Eliza Christian, so far as the Waialua company is concerned, for the reason that the Waialua company purchased from Annie Kentwell, for a valuable consideration, her interest in the rents that had been assigned to her by the instrument of 1906, in ignorance of Eliza Christian's imbecility. It is also inferable from the opinion of the majority that they consider that the instrument of 1906 is incontestable by Eliza Christian, even as to Annie Kentwell, for the reason that the consideration for the instrument was the agreement of the latter to support the former during her life. I cannot agree with any of these conclusions.
Speaking of the lease the majority stated their view of the law as follows: "It is our view of the law that a lease made by an incompetent, who has not been judicially declared insane, to a lessee without knowledge of the incompetency, for an adequate rental and upon other terms that are reasonable and fair, which is beneficial to the incompetent and is in effect a provision in favor of the incompetent for necessaries for his sustenance and comfort, — a lease which has been fully performed and is accompanied by no fraud or other circumstances of inequity to the incompetent, — should not be canceled, — even though the lessee can be restored to the status quo ante."
It is thought by the majority that the view that the lease is incontestable by Eliza Christian regardless of whether the Waialua company can be restored to its status quo is supported by the doctrine announced by Judge Story in his work on Equity Jurisprudence (Vol. 1, 14 ed.). This doctrine was quoted in the former opinion of this *Page 68 court and is now requoted by the majority. I take the liberty of quoting it again (§ 317): "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 to do any valid act, every person dealing with them, knowing their incapacity, is deemed to perpetrate a meditated fraud upon them and their rights. And surely if there be a single case in which all the ingredients proper to constitute a genuine fraud are to be found it must be a case where these unfortunate persons are the victims of the cunning, the avarice and corrupt influence of those who would make an inhuman profit from their calamities. Even courts of law now lend an indulgent ear to cases of defense against contracts of this nature, and if the fraud is made out will declare them invalid." I see nothing in this language which justifies the conclusion that the contract of an imbecile, fairly entered into by the other party without knowledge of the imbecile's mental state and which was for the imbecile's benefit, cannot be avoided when the facts show that the status quo of the party claiming under the contract can be restored. What is clearly implied by Story's language is that a contract made with an idiot, with knowledge of his idiocy, is a fraud on the idiot and therefore void and that when under these circumstances the defense of idiocy is interposed to any claim made under the contract even courts of law lend an indulgent ear to it and if the idiocy is proven will declare the contract invalid. In the succeeding section (318) of his treatise, under the heading "Contracts with Person Non Compos Mentis Should Be Evidenced by Utmost Good Faith," the great author said: "But courts of equity deal with the subject upon *Page 69 the most enlightened principles, and watch with the most jealous care every attempt to deal with persons non compotes mentis. Wherever from the nature of the transaction there is not evidence of entire good faith (uberrimae fidei), or the contract or other act is not seen to be just in itself or for the benefit of these persons, courts of equity will set it aside or make it subservient to their just rights and interests. Where indeed a contract is entered into with good faith and is for the benefit of such persons, such as for necessaries, there courts of equity will uphold it as well as courts of law. And so if a purchase is made in good faith without any knowledge of the incapacity, and no advantage has been taken of the party, courts of equity will not interfere to set aside the contract if injustice will thereby be done to the other side, and the parties cannot be placed in statu quo, or in the state in which they were before the purchase."
The majority are of the opinion that the portion of this section which precedes the words "and so" relates to a situation entirely different from that described in the portion following these words. Their view of this section is thus stated in the opinion: "`Where indeed a contract is entered into with good faith and is for the benefit of such persons, such as for necessaries, there courts of equity will uphold it as well as courts of law.' 1 Story's Eq. Jur. (14 ed.) § 318. This, interalia, was quoted with approval in our former opinion (31 Haw. 885) . We do not understand this statement of Story's to be in any way qualified by the next succeeding sentence: `And so if a purchase is made in good faith without any knowledge of the incapacity, and no advantage has been taken of the party, courts of equity will not interfere to set aside the contract if injustice will thereby be done to the other side, and the parties cannot be placed in statu quo, or in *Page 70 the state in which they were before the purchase.' The introductory `and' indicates that the succeeding sentence is not a repetition of what was said in the sentence first here quoted but deals with a somewhat different state of facts. It is to be noted that in the second sentence no reference is made to the element of `benefit' to the incompetent or of the contract being `for necessaries;' and the second sentence adds the element of necessity of restoration to the status quo when it does not appear that the contract was for the benefit of the incompetent, as for necessaries."
I think it is hardly fair to an author to single out any one word he may happen to have used and interpret his entire thesis by it. For instance, Story uses language which if it stood alone might be susceptible of the construction that if an imbecile conveyed property of great value to one who was ignorant of the imbecility and the consideration was the agreement of the grantee to furnish the imbecile with support during his life the conveyance must stand although the imbecile died a month after the conveyance and only one hundred dollars had been spent for his support. But when Story's entire thesis is considered I imagine no one would contend that this is what he meant. Story also uses language in the second paragraph of the section from which a sophist might argue that unless a "purchase" was involved the doctrine the author thought sound would have no application. I think no court would listen with patience to such a contention, it being evident from the context that all contractual dealings with an imbecile were under consideration.
Story was laying down what he considered equitable principles by which the respective rights of lunatics and those dealing with them should be determined. One of these principles was that if a person deals with a lunatic *Page 71 in good faith and the transaction is for the benefit of the lunatic, such as furnishing him with necessaries, the lunatic should not be permitted to escape responsibility to the detriment of the other contracting party.
I do not believe that it is implicit in the language used by Story that every contract entered into in good faith with a lunatic and for his benefit should be held incontestable when it appears that the other contracting party would suffer no harm from the cancellation of the contract. This would be to withhold from these unfortunate persons the protection which courts of equity have always given them and instead of making the contract subservient to their just rights and interests would make their rights and interests subservient to the contract. The second paragraph of the text, I think, was intended by the author to make this entirely clear. His introduction of it with the phrase "and so," I believe, indicates this. The paragraph should be interpreted as though the introductory words were "therefore" or "that is to say," indicating that what followed was to be considered as corollary to or a conclusion from what preceded it. (For interpretation of the phrase "and so" and the word "so" seeBlanton v. State, 1 Wash. 265, and Clem v. State,33 Ind. 418, 431.) If the phrase "and so," as it was used by Story, is given the meaning which I think it imports, the second clause of his thesis means that contracts made with an imbecile in good faith, without any knowledge of the incapacity and without taking advantage of the imbecile, should be upheld unless the party dealing with the imbecile can be restored to his status quo and thus protected against injustice. Pomeroy, in his work on Equity Jurisprudence, § 946, which is quoted by the majority, expresses his view of the law in almost the same language as that used by Story. In view of the cases *Page 72 cited in support of their theory, which I have examined carefully, I am led to the conclusion that these authors did not intend and could not have meant to lay down a rule that simply because a contract is for the benefit of the lunatic such contract will be upheld even though the parties could be restored to status quo.
In further support of their conclusion the majority also quote from six cases — Rieckhoff v. Goddee, 215 Ill. App. 141;Riggan v. Green, 80 N.C. 175; Stannard v. Burns' Admr.,63 Vt. 244; Casebier v. Casebier, Committee, 193 Ky. 490;Green v. Hulse, 57 Colo. 238, and Clay v. Clay'sCommittee, 179 Ky. 494.
In Rieckhoff v. Goddee, William Rieckhoff, an insane person, had a judgment against Augusta Greenberg which he assigned to defendant Goddee. William's wife, Anna, who was his conservatrix and the complainant, sought to set aside the assignment of her husband and alleged that at the date of the assignment he was insane. The defendant Goddee had made advances to William's mother, Karolina Rieckhoff, and had also given thirty dollars to William after the assignment. The majority quote the following dictum from the Rieckhoff case (p. 144): "It has been held in many cases that even where the contracting party was shown to have been suffering from impaired mentalfaculties, yet if the transaction in question was fair and honest and what the party might reasonably be expected to do under all the circumstances, courts will not set aside such a transaction, for the reason that the mental lack has not entered into the act." (Italics mine) The following cases are cited by the Illinois court in support of its statement of the law:English v. Porter, 109 Ill. 285; Kelly v. Nusbaum,244 Ill. 158; Fitzgerald v. Allen, 240 Ill. 80. An examination of these cases discloses that in the dictum the Illinois court had in mind the rule that *Page 73 is applicable when there is not entire but only partial lunacy. That the quotation is only a dictum is shown by the fact that in the Rieckoff case the Illinois court held the assignment void because of the assignee's knowledge of the assignor's insanity, and refused to require the complainant to restore to Goddee the advances he had made.
In Riggan v. Green, plaintiffs, heirs of a lunatic, sought to recover a tract of land which their lunatic ancestor deeded to Brown and the latter to the defendants. Brown paid five hundred dollars, the full value of the land, and the money was used to extinguish an execution against the lunatic grantor. As a result of this transaction the lunatic was enabled to keep another piece of land which later descended to the plaintiffs. It is apparent from a study of that case that the reason why the court did not apply the doctrine of restoration to status quo was that the plaintiffs would gain nothing by rescission conditioned upon restoration. In refusing to set aside the deed the court particularly had in mind this fact as appears on page 177 of the opinion: "From such a state of facts, it would be apparent to the chancellor, and he would so decide, that a rescission of the deed would produce no benefit to the plaintiffs if coupled with the duty and obligation to replace defendants in statu quo, whilst it would be a great inconvenience and injustice to the defendants, and thereupon the conclusion would be not to interfere to set aside the deed, but leave the same to be operative and valid."
I agree with the Stannard case in holding the lunatic liable for necessaries. The only distinction I need make between the case at bar and the Casebier and Green cases is that in the latter cases no offer of restoration was made and no word on that subject was said. Therefore I believe they do not support the rule that where a contract *Page 74 is for the benefit of the lunatic it will be upheld even though the parties can be placed in statu quo.
The Clay case is clearly distinguishable on its facts from the case at bar. In the Clay case the lunatic, George Clay, and his sister Letitia, who owned the remainder interest in the land, deeded 296 acres to S. Brooks Clay, but reserved a life interest in fifty acres. The latter paid $12,000 cash and agreed to make eleven annual payments of $2040 each with interest, evidenced by eleven notes. Brooks also agreed to pay $5000 upon the death of George, making the total consideration $39,440. Shortly after the deed was executed suit was brought to have it canceled, which relief was granted by the chancellor. The Kentucky court of appeals, in reversing the decree of the chancellor, held that the consideration was fair and covered the full value of the land. Apparently the land was of no greater value when the suit was brought than it was when the deed was made. Under these circumstances the insane person, having received the full value of the land, would have been no better off by returning the consideration and getting his land back.
Moreover, in the later case of Cash v. Bank of Lowes,196 Ky. 570, 245 S.W. 137, the court set aside a contract which was beneficial to the lunatic. Nellie Hawkins, a lunatic, and her five children, were living with her brother Noah Wagoner on a farm. Noah held the land under a lease. Nellie and Noah desired to purchase this farm so as to acquire a permanent home. To that end a deed was obtained from the owner and Nellie executed two notes and two checks covering the purchase price of the land. R.L. Cash, who was to receive the money, presented the two checks drawn on the defendant bank. The bank refused payment on the ground that Nellie Hawkins was mentally incompetent at the time she signed the *Page 75 checks. Two days later she was adjudged insane. Cash sued the defendant bank to recover on the two checks. Judgment was rendered by the lower court in favor of the defendants, and in affirming it the appellate court said (p. 573): "The rule refusing a rescission where the contract was made in good faith before inquest does not necessarily prevail if the parties may be placed in statu quo. * * * Inasmuch as appellant, R.L. Cash, has a purchase money lien against the real estate which will save him harmless the parties may be placed in statu quo. No one a party to this record will suffer by a cancellation of the checks, notes and deed, as directed by the judgment below."
The majority also quote the following from 2 Black on Rescission and Cancellation (§ 256, p. 726): "The tendency of the modern decisions is to broaden out the rule above stated, and to refuse rescission or cancellation of any ordinary contract or conveyance of an insane person, if it is shown to be fair, reasonable, based upon an adequate consideration, and beneficial to the afflicted person, although, of course, inadequacy of consideration or any misrepresentations as to value of the subject-matter will be held fatal to such a contract." The first case cited by Black in support of his statement of the law isNational Metal Edge Box Co. v. Vanderveer, 85 Vt. 488. The first syllabus of this case is as follows: "As a general rule, equity will not set aside the fair and reasonable executed contract of a lunatic, if made in the ordinary course of business on sufficient consideration, of which the lunatic has the benefit, and the parties cannot be placed in their former state, unless the mental condition of the lunatic was known to the other party, or he was chargeable with knowledge of it," and this clearly indicates that Black had no thought of laying down the rule *Page 76 which the majority think should govern the lease of 1905 and the instrument of 1906. The facts in that case were that Vanderveer and his wife executed a note and mortgage to the plaintiff company to secure a loan made by the latter to the former. The money loaned was used to pay off a former mortgage against the property of the Vanderveers who were being pressed for payment. The trial court entered a decree foreclosing the mortgage and this decree on appeal was affirmed. Under the facts it is clear enough that equity required that the plaintiff be paid back the money which it had loaned the lunatic and which was used for the lunatic's benefit. This was a complete restoration of the plaintiff to its status quo and was no injustice to the lunatic. But let it be supposed that instead of giving a mortgage to secure the loan the lunatic, for the same amount of money, had leased the land for a term of years and before the expiration of the lease the land had become of very much greater rental value, far in excess of the amount paid him. If the suit had, under these circumstances, been for the purpose of canceling the lease upon the condition that the lunatic return to the lessee what he had received I think under the law as I conceive it and as it was recognized by the Vermont case, the relief prayed for would have been granted. Such a decree would afford the insane person the protection which courts of equity are zealous to afford persons in that unhappy state without doing any injustice to an innocent party who had dealt with the lunatic. This is the great principle upon which equity deals with contracts between lunatics and parties who are innocent and act in good faith. I know of no case which holds that this principle is to be applied only in instances where the insane person receives no benefit and is not to be applied to instances where the insane person does receive benefit. *Page 77
The rule which I think applies to the lease of 1905 finds support not only in Story and Pomeroy, as I interpret their language, but is also stated as follows in 32 C.J. 734, 735: "According to the weight of authority, however, where there has been no inquisition or adjudication of insanity, a contract, entered into upon an adequate consideration of which the insane person has had the benefit, and made by the other contracting party in good faith, without fraud or undue influence and without knowledge of the insanity or reason to suspect it, will be upheld against the insane person or his representatives, and it cannot be avoided by them, where the parties cannot be put in statu quo. * * * The right to avoid a voidable contract may be exercised where all the parties thereto can be placed in statu quo, and the good faith of the sane party will not prevent its avoidance."
Smoot in his work on The Law of Insanity, pp. 284, 285, also states the rule as follows: "The manifest hardships worked by the rule above discussed" (the "void rule") "has led to a different rule in a majority of the states where the contract of one insane is held to be voidable only. This is especially evident in the later decisions. It is contended with force that it would be highly unjust to allow a person, merely because he is mentally unsound, to enjoy the fruits of a contract without giving something in return, or that an insane person be allowed to recover back what he has attempted to convey without being required to return that which he himself has received thereunder. This is especially true where the contract is reasonable with reference to the advantage accruing under it to the non compos, and been fully executed, and the opposite party cannot be put back into the same position he occupied before the contract was entered into. It therefore seems to be the better rule, supported *Page 78 by the decisions of the courts of a majority of the states, that a non compos, not under guardianship at the time of the contract in question, will not be allowed to repudiate an executed contract, where the other party to such contract has acted in good faith and without knowledge of such insanity, and cannot be put back in statu quo with reference to the matter, unless it be shown that such other party should be charged with knowledge of the insanity, that the transaction was without adequate consideration, or that there were other circumstances which would render the transaction inequitable. But where such other person can be put back in statu quo, the mere fact that the contract would have been an advantage to it will not prevent its rescission. This rule is denied by the courts of a few states, who insist that the doctrine of innocent purchaser is no defense, even where the lunatic's contract is voidable only." See also 14 R.C.L. 584; 46 A.L.R. 419; 34 A. E. Ann. Cas. (1914D) 867; 1 Williston on Contracts 494-496. The principles announced by these writers have been many times judicially recognized and applied.
In Czyrson v. Roseau County Nat. Bank, 172 Minn. 420, Lieberg, an insane person, executed a note and a chattel mortgage to the defendant bank before his insanity had been adjudicated and at a time when he had no guardian. The money loaned by the bank was used to pay off taxes on the lunatic's homestead and to pay interest on a mortgage thereon. Lieberg was subsequently adjudicated insane and his guardian sued to cancel the note and mortgage. The trial court (p. 420) "directed that plaintiff have judgment that the note and mortgage be of no effect against Lieberg provided he or his guardian should pay a stated sum to the defendant, and that if payment should not be made, then that the note and mortgage *Page 79 remain in force." In affirming this judgment the appellate court said (pp. 421, 422): "The fact that one of the parties to a contract is incompetent although he has not been so adjudicated, does not render the contract void but only voidable; and such incompetency is no ground for setting it aside where the other party has no notice of the incompetency and derived no inequitable advantage from it, and where the parties cannot be placed in statu quo. * * * The transaction was an honest one. It was for the benefit of Lieberg. He lost nothing. It would be an injustice for the bank to lose its money and an unjust advantage would accrue to Lieberg. The circumstances and established facts do away with the fraud that is deemed to result from transactions with incompetent persons when such incompetency is known. It is the purpose of justice to protect the incompetent, not to arm him to do wrong to others. Under the law the transaction is voidable and the guardian has chosen to have it avoided. Seeking this equitable relief, the court observing the unconscionable result, imposed as a condition precedent that the bank should be paid the full sum which it expended for the purposes mentioned at the solicitation of the wife and son and of which Lieberg's estate received and still has the full benefit. This was proper."
Contracts for necessaries are without question highly beneficial to the lunatic. They are nevertheless ordinarily not binding on the lunatic, the party furnishing the necessaries being entitled, in order to protect him against injustice, to recover from the lunatic or his estate, on an implied contract, the reasonable value of the necessaries furnished him. The rule is thus stated in 32 C.J.: "Generally, when necessaries are furnished to a person who by reason of mental incapacity cannot himself make a contract, the law implies an obligation on the part of *Page 80 such person to pay for such necessaries out of his own property; his liability for necessaries is deemed rather a benefit than a disadvantage to him" (§ 523, p. 739). "Since the liability is created by law the amount of the liability ordinarily is limited to the reasonable value of the necessaries furnished and not what the insane person may have promised to pay. So there may be a recovery on an express contract for necessaries to the extent of their value; and it has been held that one who lends to an insane person may recover to the extent that the money is used for necessaries, but no more" (§ 524, p. 740).
On this subject Smoot says (§ 350, p. 289): "A seeming exception to the general rule that the contracts of a non compos are voidable is that which gives force to contracts for the procuring of necessities. Such implied obligation is considered as being merely confirmative of an obligation existing independent of express contracts, since under an implied contract the insane person is liable for the reasonable value of necessities furnished him and his family, if he has one. This seems to be the most universal rule, and has been held to apply to persons adjudged insane, as well as to those not so adjudged, provided, of course, the guardian himself fails to furnish the necessities. The reason for the rule is very apparent and is twofold: (1) As a matter of humanity and public policy, it is necessary that such unfortunates be provided for. Unless there was some provision for recovering the value of the necessities furnished to supply such wants, there would be little likelihood of any one doing so. In such a case, such insane person, however extensive his estate, might be reduced to an object of charity and want. (2) Under the old rule of equity, that the law will imply a promise to give quid pro quo, justice will imply a promise to pay a reasonable equivalent for the benefits actually *Page 81 received, and which are necessary and proper for the insane person's comfort and protection. This has been extended to include material and services furnished for the benefit of his separate estate. It has also been held that, as the services of an attorney may be necessary to protect the property and liberty of the non compos, he will be liable for the reasonable value of legal services rendered him by an attorney, but not for any specific amount determined by the promise of the non compos." See also 14 R.C.L. §§ 41, 42, pp. 586-588, and 1 Williston on Contracts, § 255, p. 498.
Hancock v. Haile, 171 S.W. (Tex.) 1053, was a case in which the plaintiff, a lunatic, transferred his horses and farming implements to the defendant in consideration of the latter's agreement to care for the former as long as he lived unless the lunatic "should become dangerous and confinement shall become necessary." Under this contract the defendant supplied the lunatic with necessaries for almost two years, after which time he was confined in an asylum. Ten years later the lunatic was restored to sanity. After restoration and his release from the asylum he brought an action against the defendant to recover the difference between the value of the property he had delivered to the defendant and the value of the necessaries furnished him. The jury found that the plaintiff was incapable of contracting at the time he transferred his property. The trial court entered judgment for the plaintiff. In affirming this judgment the appellate court said (p. 1055): "It is also well settled that, while an insane person or a minor is bound by his contract for necessaries furnished him, the extent of his obligation thereunder is to pay the reasonable value of such necessaries, irrespective of the price which he has agreed to pay." *Page 82
In Nielsen v. Witter, 111 Cal. App. 742, and Estate ofNielsen, 111 Cal. App. 744, Nielsen, a lunatic, paid $1500 to the defendant attorney for legal services. Subsequently the guardian of the lunatic brought an action against the attorney for the money paid him. The relief asked was not entirely but partially granted, the court holding that the lunatic was entitled to recover the sum of $250 which was the difference between the amount he had paid and what the court held to be the reasonable value of the attorney's services.
The principle that is applied in such cases is eminently just and equitable alike to the lunatic and to the party who has furnished him with such things as were reasonably requisite for his support or otherwise essential for his protection. Any other principle would be unjust and inequitable either to the lunatic or to the party dealing with him. For instance, it would be unjust and inequitable to the lunatic, who in his transactions with others is without the capacity to protect himself, to hold him unconditionally bound by his contracts. It would be equally unjust and inequitable to dismiss, without remedy, the other party who in good faith had made expenditures either of money or services for the support and maintenance of the lunatic or for the protection of his rights. And so courts of equity have evolved the great doctrine under which both parties may be shielded from injury.
Through all the fabric of the law there runs like a red thread this just and equitable thought, — if a contract is made by an imbecile with one who is ignorant of the imbecility and the consideration is fair and is for the benefit of the imbecile it is voidable and not void and will be upheld if by setting it aside injustice will be done the innocent party. Such contract will also be upheld when *Page 83 after restoring to the other party what he is justly entitled to the lunatic is no better off than if the contract remained uncanceled. Equity does not trouble to interfere when the result sought would be fruitless. In other words, and to state the thought affirmatively, I think all contracts made by an imbecile should be canceled even though the other contracting party was ignorant of the imbecility, if it is to the advantage of the imbecile to cancel them and the rights of the innocent party can be adequately protected.
I come now to a discussion of the instrument of 1906. I think this instrument was absolutely void as between Eliza Christian and Annie Kentwell, and being so I think the latter conveyed nothing to the Waialua company. The evidence is undisputed that Annie Kentwell took this instrument with full knowledge of Eliza's imbecility. I think therefore that under the view of the law expressed by this court in its former opinion the instrument is void ab initio. In that opinion the court said (p. 873): "* * * We think, also, that if the Waialua company, or its agents duly authorized to obtain her signature to the deed in question, had actual knowledge of her incompetency or had knowledge of facts which would put a reasonable person upon inquiry, which inquiry if honestly pursued would lead to such knowledge, the deed would, as between the parties, be entirely void."
In Kendall v. Ewert, 259 U.S. 139, the Supreme Court of the United States announced and applied this rule in the case of a deed that had been executed by a mentally incompetent grantor whose incompetency was known to the grantee. The deed was canceled without requiring the return of the consideration. The court went even further than this and compelled the grantee to discharge a mortgage lien he had created against the land and to account to the administrator of the grantor for the rents *Page 84 and profits the grantee had received during the lifetime of the grantor.
I can conceive of no reason why the rule should not be applied to the instrument of 1906 as well as to a deed. In my opinion it was not rendered incontestable by the fact that the consideration for its execution was Annie Kentwell's agreement to support Eliza. Annie Kentwell, as I have already observed in discussing contracts for necessaries made by insane persons, would not, however, be left remediless in case she had furnished Eliza with necessary support. The law as established by judicial authority, being a just and righteous concept, would imply an obligation on Eliza's part to adequately reimburse Annie for her expenditures.
I cannot agree with the conclusion of the majority that because the Waialua company was an innocent purchaser Eliza is precluded from asserting her right to set aside this 1906 instrument. Since Annie Kentwell received nothing under this instrument she had nothing to convey to the Waialua company by the deed of 1910.
In Dexter v. Hall, referred to by the majority, the court had before it the question of whether a grantee of land who had for a valuable consideration and without notice of the insanity of the owner taken a deed from a prior grantee whose deed was void because of the owner's insanity was protected. The court answered this question in the negative. In other words, the court established the principle that when a conveyance of land is made under circumstances that render it void ab initio a subsequent purchaser from the grantee, although ignorant of the fact which renders the deed to his grantor void and although he paid a valuable consideration for the land, is defenseless in a suit to have the deed which he received canceled. So far as I know this principle has never been *Page 85 abandoned or modified by the high tribunal which established it.
In their opinion the majority, in considering the Dexter case, say that Hall, who was the primary grantor, had been judicially adjudged to be a lunatic and was in confinement in a lunatic asylum under judicial commitment. From this the majority conclude that Dexter, who was the puchaser from Hall's grantee, had in contemplation of law notice of Hall's lunacy and therefore was not an innocent purchaser. I respectfully suggest that this conclusion is based on a factual misapprehension. This appears from the brief of Dexter's counsel. In arguing that his client should be protected because he was an innocent purchaser counsel said: "There are certain facts which should be remembered. 1. There was 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. In that case the transaction stands. * * * 3. So far as appeared, Hall had not been placed under a committee, nor had he been pronounced insane by judicial decision, and if that had not been done, his contracts are valid, no undue advantage having been taken of him in obtaining them. 4. No complaint was made that the consideration was inadequate, or that it was not fully paid by the purchaser. And there was no allegation of fraud in obtaining the power, or in executing the grant." These statements were not challenged by opposing counsel. Moreover, it nowhere appears in the opinion of the court that Dexter was denied relief because he was not an innocent purchaser but because the original deed of Hall was on account of his insanity void ab initio. The conclusion seems to me to be inescapable that when an instrument is void ab initio even subsequent innocent claimants *Page 86 under it have no defense in a proceeding to set it aside.
It was the opinion of the court in the former appeal that under the broad powers of equity in partition proceedings the rights of the Waialua company could, upon cancellation of the deed of 1910, be fully secured. I do not understand from the opinion of the majority that there is any recession from this view. Another means of protecting the Waialua company has, however, been substituted. Under the opinion of the majority, if the parties do not make certain factual agreements, the case is to be remanded to the circuit judge with instructions to take testimony, make the necessary findings and enter a decree accordingly. This would entail further expense and delay, which I consider unnecessary. The better course, it seems to me, would be to now enter a final decree which, so far as this jurisdiction is concerned, would end the litigation.
I think the decree appealed from should be affirmed.