I concur in the conclusion of Mr. Justice O’Brien’s opinion, upon the ground that a deed of a lunatic, or one non compos mentis, is not void, but voidable, and relief in such a case must be had in a court *30of equity. In the early cases the distinction between instruments that are void or voidable is not clearly defined; but I think it has always been the rule that the deed of a person not judicially declared a lunatic is voidable only. In Beverley's Case (4 Coke, 123) the rule is stated “ 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 in 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 personand this, I think, has always been the law of England. (See Campbell v. Hooper, 3 Smale & G. 153, and cases cited.) In Jacobs v. Richards (18 Beav. 300) the rule is stated by the master of the rolls as follows : “ Where a deed pri/ma facie good at law is brought before it, this court, in the exercise of its ordinary functions and jurisdiction, acts on it until it has been set aside. * * * When the court sets aside deeds for fraud, duress or intoxication, the burden of proof lies on the party insisting that the deed ought not to be acted on, and I see no ground why, where insanity is alleged, a different principle should be applied The advantages of requiring a deed to be set aside by an original or cross suit are obvious. The court has then the power of putting the party, who has received some benefit under the transaction he seek’s to impeach, upon equitable terms and is enabled to do full justice on setting aside the deed ” (See, also, Greenslade v. Dare, 20 Beav. 284; Price v. Berrington, 3 Macn. & G. 486 ; Imperial Loan, Co. v. Stone, L. R. [1892], 1 Q. B. 599); and this is the rule in this State. In Jackson v. Gumaer (2 Cow. 552) it was expressly held that a deed to or from a lunatic, before office found, is not void, but voidable only. In Ingraham v. Baldwin (9 N. Y. 48) the same principle was applied, the court saying: “ A second objection to the admission of this testimony was, that the lunacy of the mortgagor did not absolutely avoid the mortgage. It was at most voidable at the election of the lunatic or his personal representatives, or those claiming some interest under him in the premises. A lunatic is not absolutely disqualified from making a contract. The law will in certain cases even raise .one by implication. * * * There is a strong analogy between a lunatic and an infant in relation to their power to. contract. Either can oblige himself for necessaries, and the law provides -for each a formal *31process by which to avoid their agreements.” In Canfield v. Fairbanks (63 Barb. 461) it is said: “ A court of equity, when its jurisdiction is invoked to set aside deeds and contracts of a person, upon the ground of insanity, acts upon equitable principles. It is by no means a matter of course for a court of equity to set aside and declare void the act of a lunatic executed during his lunacy. It does so in no case except upon equitable terms.” Van Deusen v. Sweet (51 N. Y. 378) would seem to be in conflict with this rule, but in that case it appeared that the grantor had been declared a lunatic by a proper judicial proceeding, where it had been expressly found that he was a lunatic at the time of the execution of the deed ; that the deed was without consideration from a father to his son who had knowledge of the grantor’s condition; but so far as this case holds that a deed executed by a person who has not been judicially declared incompetent is absolutely void it is opposed to the weight of authorities, both in this State and in England. To hold that a deed executed by a person not judicially declared incompetent, regular upon its face and properly acknowledged, is absolutely void, so that no title is conveyed, upon subsequent proof of the insanity of the grantor, would create great doubt and uncertainty as to the title to real estate. It would only be necessary for a grantor, or his heirs or devisees, at any time before the Statute of Limitations had run, to prove the insanity of the grantor to destroy a title valid upon its face. If such a conveyance is void no terms can be imposed as a condition of avoiding it, although the lunatic has actually received the consideration and the property has been improved, relying upon the conveyance actually and properly executed. For this reason, I think, the action cannot be maintained, and that the dismissal of the complaint was proper. I should have considerable difficulty in sustaining this judgment upon the ground that the plaintiff had elected to affirm the deed by the commencement of the action against his agent, to whom it is alleged the consideration money was paid. It does not appear that at the time of the commencement of that action the plaintiff had any knowledge of the fact that the defendant claimed under a deed executed by him. The complaint in that action does not allege that the agent had received the consideration for this specific conveyance, and an election of remedies to be enforced must have been made after the party had full knowledge *32of the transaction; but the injustice of treating a. deed, executed As this was, absolutely void is apparent in this action. This plaintiff would be entitled to recover the property that his deed purported to convey, although he would also be entitled in his action-against his attorney to recover the money that the attorney had received when acting in that capacity,, and thus the plaintiff would get back .his property and would also retain the -consideration that the defendant had paid for it. .
Exceptions overruled and judgment ordered on verdict, with costs.