[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 544 The action is for the foreclosure of a bond and mortgage, dated April 23, 1870, and then executed by the defendant Hunt for the purpose of securing to the plaintiff the payment of $4,000, on the 1st of September, 1871. The complaint shows that interest was paid on the 1st of March, 1871, but default made in September following; that in December, 1871, the defendant Hunt was adjudged a lunatic, and Arnold H. Wagner appointed committee of her person and estate. He was made co-defendant with her; and in her behalf, and by way of defense alleges "that at the time of the execution of the bond and mortgage she was a lunatic, and incapable of making or executing them." The issue thus presented was tried before a careful and experienced judge at Special Term and he found as a fact: "That at the time of the execution and delivery of the bond and mortgage, the said Camilla Hunt was of sound mind, and was capable of making and executing said *Page 545 bond and mortgage," and ordered judgment in accordance with the prayer of the complaint. The finding is well warranted by the evidence, and upon this ground alone, we should be required to affirm the judgment.
But the learned court at General Term went beyond it, and for the purposes of the appeal assumed, without deciding, the contrary of the finding to be the truth, yet held, that as the case presented a contract executed upon a valuable consideration, of which the lunatic had the benefit, made by the plaintiff "in good faith, without fraud or unfairness, without knowledge of the insanity, and without notice or information calling for enquiry," that the plaintiff was entitled to recover. The correctness of this conclusion is strenuously assailed by the learned counsel for the appellant, but both upon principle and authority we think it must be sustained. Upon principle because the plaintiff's money was had by the defendant, appropriated to her use, and thus tended to increase the body of her estate, and although in some cases a man may now, notwithstanding the old common law maxim to the contrary (Beverly's Case, 2 Coke's R., 568, pt. 4, 123,b), "be admitted to stultify himself," yet he cannot do so to the prejudice of others, for he would thus make his own misfortune an excuse for fraud, and against that the doctrine of the maxim stands unaffected by any exception. (1 Story's Eq. Jurs., § 226.) In this case the loan was made in the ordinary course of business; it was a fair and reasonable transaction; the defendant acted for herself, but with the aid of an attorney; if mental unsoundness existed, it was not known to the plaintiff, and the parties cannot now be put in statu quo. The defendant was therefore properly held liable
Very much in point, and upon circumstances similar to those above stated, was Molton v. Camroux (2 Exch. [Welsby, H. G.], 487), affirmed in error, 4 id., 17. Concerning it, the chancellor in Elliott v. Ince (7 DeG., M. G. [56 Eng. Chy.], 487), says: "The principle of that case was very sound, viz.: that an executed contract, when parties *Page 546 have been dealing fairly, and in ignorance of the lunacy, shall not afterwards be set aside; that was a decision of necessity, and a contrary doctrine would render all ordinary dealings between man and man unsafe." And so it has been held, and like contracts enforced upon the same principle, in repeated instances, in the courts of this and other States. (Loomis v.Spencer, 2 Paige, 153; In the Matter of Beckwith, 3 Hun, 443;Canfield v. Fairbanks, 63 Barb. 461; Lancaster County Bank v. Moore, 78 Penn. St., 407; Wilder v. Weakley,34 Ind., 181; Matthiessen Co. v. McMahon, 38 N.J. Law, 536;Behrens v. McKenzie, 23 Iowa 333.) These cases stand on the maxim "that he who seeks equity, must do equity," and it is applicable to the case in hand; for the defendant seeks to deprive the plaintiff of its remedies to enforce the security while she retains the benefit of the contract. This is so plainly inequitable and unjust as to render a further discussion unnecessary. Nor does the fact that the borrower was subsequently upon inquisition taken, declared to be insane, alter the result. Such proceeding has no effect upon a contract made without notice, and on the faith of the presumption that the person contracted with was of competent understanding.
The judgment should be affirmed
All concur.
Judgment affirmed.