It is settled in this Commonwealth that the deed of an insane person is ineffectual to convey a title to land, good against the grantor, or against his heirs and devisees, unless it is confirmed by the grantor himself when of sound mind, or by his legally constituted guardian, or by his heirs or devisees. Valpey v. Rea, 130 Mass. 384, and cases there cited. And such deed may be disaffirmed without returning the consideration money, or placing the other party in statu quo. Chandler v. *52Simmons, 97 Mass. 508, 514, 515. Nor is it material that, in taking the deed, the grantee acted in good faith, and without knowledge of the grantor’s insanity, because he who deals with an insane person, as with an infant, does so at his peril. Gibson v. Soper, 6 Gray, 279, 282. As was said in Seaver v. Phelps, 11 Pick. 304, 306, 307, “ The fairness of the defendant’s conduct cannot supply the plaintiff’s want of capacity ; ” and again, “ We are aware that insanity is sometimes hard to detect, and that persons dealing,with the insane may be subjected to loss and difficulty; but so they may be by dealing with minors.” A similar rule of law is also held in Hovey v. Hobson, 53 Maine, 451, Crawford v. Scovell, 94 Penn. St. 48, Somers v. Pumphrey, 24 Ind. 231, and in other cases.
We see no good reason why a court of equity should refuse to interfere to set aside the conveyance. The verdict of the jury has settled the fact of the grantor’s incapacity, and no questidn remains open as to that. It is to be assumed that she was not of sufficient mental capacity to execute the deed. It also appears from the bill, the answer, and the defendants’ brief, that the nature of her incapacity was that her mind had become weakened by old age, sickness, and infirmity. Under these circumstances, the defendants met her personally, and procured from her the execution of the mortgage, the sole consideration of which was to secure preexisting indebtedness. She died eighteen months afterwards, and the plaintiff’s bill to set aside the mortgage was brought five months after her death. There were no such circumstances, raising special equities in favor of the defendants, as have sometimes led courts of equity to refuse active aid in setting aside invalid instruments. The case presented is not like that of a transaction in the ordinary course of business, with a person apparently in the full possession of his faculties, and with nothing in his appearance or condition to suggest doubt or inquiry, and where there has been an equal and fair exchange of considerations, so that the dealing may be said to have been as much for the benefit of the grantor as of the ■ grantee.. There has been no subsequent conveyance to an innocent bona fide purchaser for value, nor any expenditure of money by the grantees upon the property by way of improvement, Elliot v. Ince, 7 De G., M. & G. 475, 487. Price v. Berrington, *533 Macn. & G. 486. We assume that the grantees practised no fraud and exercised no undue influence upon the grantor; but the circumstances do not show any such strong equity in their favor as to enable them to resist a. bill in equity to set aside a conveyance which is clearly voidable at law, and which at present is a clóud upon the plaintiff’s title. Clouston v. Shearer, 99 Mass. 209.
The defendants also contend that the plaintiff is estopped to maintain his bill, because he was present at the making of the mortgage. But this falls short of what is necessary in order to create an estoppel.
In the opinion of a majority of the court the entry must be,
Decree for the plaintiff.