delivered the opinion of the court:
The cause having been referred to the master to take and report the proofs and his conclusions on points of law and fact, the proofs taken by the master should have been submitted with his report. But whether the omission is a fatal error depends upon whether an inspection of the evidence by the court was necessary in order to determine as to the exceptions to the report. Whether the instrument in writing" which the master deemed sufficient to relieve the witness Carbine from all liability because of the covenants in his deed to the appellee was effectual for that purpose, made it necessary the instrument should be consulted by the court in order to determine whether it operated to remove the interest of the witness. The deed from which possible liability of the witness arose was under seal, and could only be modified and varied by a release under seal. Loach v. Farnum, 90 Ill. 368.
The finding of the master (which was not excepted to) that the order dismissing the original proceeding for want of prosecution had no operation to set aside or affect the final decree which had been previously entered in the case was correct. But we think the master erred in excluding from consideration the bill upon which the decree was rendered, the decree, and the proof reported by the former master in support of it. The question to be determined upon the issues which were raised by the petition of the appellee that the said final decree be opened and she be allowed to answer and be heard, and by her answer, was whether, upon consideration of the evidence produced by the appellee in support of her answer and of that which was adduced before the former master on which the original decree was entered, the decree should be set aside, altered or changed. (Whittaker v. Whittaker, 151 Ill. 266.) Moreover, we think the bill and the decree were proper for óonsideration in determining the competency of the witness Carbine, and also in determining as to the weight or value of his evidence if he was found competent to testify.
It was alleged by the appellant and her co-complainants, in the bill exhibited by them, that the bill filed by the conservator, and on which the prior decree was entered, alleged the conveyance of the premises in question from the witness Carbine to his daughter, the appellee, was without consideration, and was executed for the purpose of placing the apparent title in the appellee and covering and concealing" the interest of the said Carbine in the said property. This was, in effect, an averment that the said Carbine was the real owner of whatever interest in the premises it should be determined was conveyed by the deed made by the said Thomas Ronan. The witness Carbine was made defendant to the said bill filed by the said conservator and was personally served with summons to make answer thereto. He failed to appear and answer, but made default, and thereby confessed the truth of the material allegations made therein against him. It was therefore competent to produce the bill and the decree, for the purpose of showing- said Carbine was interested in the result of the proceeding aside from the interest which the appellee conceded, and to remove which she introduced the said instrument in writing- before referred to. If the bill and the decree sustained the claim that the title held by the appellee was merely colorable and held by her for the benefit of Carbine, then Carbine should have been held, for that reason, incompetent to testify; and if he was found competent to testify, the allegations of the bill and the decree showing the same had been taken as confessed by him were competent to be considered as tending- to impeach his testimony. It appears from the report of the master that his finding's on questions of fact are based almost entirely upon the testimony of Carbine. Indeed, as we understand the report, no other witness than Carbine was examined before the master. This competency, and the weight and value of his testimony if competent, were therefore questions of vital importance to the appellant.
It is urged the original bill filed by the conservator of the said Thomas Ronan and the bill filed by appellant and her co-complainants are both fatally defective, in that in neither is an offer made to return the amount paid by Thomas Carbine to Thomas Ronan as the consideration for the execution of the conveyance of the lot in question. The argument is, it is indispensable to the right of recovery under either bill that it should appear the complainants had previously tendered a return of the purchase money, or should have averred in the bill a readiness, ability and willingness to re-pay the same. A number of the decisions of this court are cited as in support of the arg'ument. We have examined the cases so cited. They were bills in chancery to set aside sales of lands for taxes, and have little, if any, application to the principle involved in the case at bar; and even in that class of cases it is not the rule that the bill must aver a prior tender of the amount paid by the purchaser for taxes, etc., or that a bill is fatally defective if it does not contain an averment the complainant is ready and willing to pay the same. The omission of an averment that the complainant was willing and ready to pay, even in a bill to redeem from a tax sale, mortgage, etc., would but leave the bill obnoxious to demurrer, and if an answer should be filed to such a bill, relief would not be denied upon the hearing because of the defect in the bill, but would be granted upon equitable terms to be declared by the decree.
The doctrine that a contract may not be rescinded by the court except the party in whose interest the rescission is awarded shall restore that which was received by virtue of the contract, is applicable, in general, only to contracts made by persons compos mentis and under no disability. Whether it is applicable, or, if applicable, to what extent it should be modified to meet particular cases where persons non compos have received money or property as the consideration for an agreement, has been much discussed by text writers and is the subject of many, not altogether harmonious, judicial decisions. The rule which seems to commend itself to our sense of justice, and which is supported by what we conceive to be the weight of authority, is that a completed contract of sale of lands by a grantor who is insane but has not been judicially declared insane, for a fair consideration in money or property, to a grantee who entered into the contract without fraudulent intent and without knowledge or notice of the disability of the grantor, will not be set aside in favor of the grantor or his representatives unless the purchase price be returned or the property parted with by the grantee be restored. (Scanlan v. Cobb, 85 Ill. 296; Boswell on Insanity, secs. 413, 414.) If the grantee, with notice of the incapacity of the insane grantor to manage his estate, invests such grantor with the possession of money or property in exchange for lands, and the said money or property, by reason of the mental incapacity of the grantor, is wasted and lost, or if the grantee, with such knowledge, obtains a conveyance of the lands from such a grantor for a consideration so inadequate as to be inequitable and to evince that it was his intention to take advantage of the infirmity of the grantor and to defraud him, such a grantee would have no standing to invoke the equitable rule that “he who asks equity must do equity,” and demand that under the operation of that maxim a court of equity should refuse to set aside the conveyance except upon the imposition of such terms as would amply protect him from any loss. Such a rule would be but to guarantee that although the attempt to fraudulently procure the property of an insane man might fail, yet the perpetrator of the attempt would be protected by law from any loss in the transaction.
It is proper we should remark, in answer.to the discussion upon the point, that as it is conceded by all parties that the said Thomas Ronan did not deliver possession of the premises in question to the grantee, Carbine, but remained in the.open and exclusive occupancy thereof, appellee, Blnbm, is deemed, as matter of law, to have taken the conveyance from Carbine with full notice of all the rights and equities of said Ronan in the premises. Illinois Central Railroad Co. v. McCullough, 59 Ill. 166; White v. White, 89 id. 460; Ford v. Marcall, 107 id. 136.
The decree will be reversed and the cause remanded, with directions to the court to set aside the report and findings of the master in chancery and the order of reference to the master, and permit the parties to produce their testimony anew, and to proceed otherwise in conformity with this opinion.
Reversed and remanded.