This is a suit upon a promissory note executed by defendant, David L. Walker, and two other persons, (who are not sued) to Zachariah Bush. The note was transferred by the payee to John E. Crews, who brought this suit. Crews died and the cause Avas revived in the name of James J. Winn, Jr., as the admia-istrator of his estate.
The defendant filed a sworn plea denying that the plaintiff Avas the party really interested in the note sued on, and also attempted by other special pleas to defend the suit upon the ground that the payee Bush, at the time he transferred the note to Crews was insane.
Demurrers Avere interposed to the pleas which set up the defense of insanity. The principal ground of demur*564rer to the pleas, the ones which presented the real question at issue, are, that the contract of assignment of a note by an insane person is not void but voidable, and that insanity is a personal plea and not available to the defendant. The demurrers were sustained.
Whatever may be the rulings by the courts of other jurisdictions upon the question, this court is fully committed to the doctrine, that the contract of an insane person i® absolutely void. — Dougherty v. Powe, 127 Ala. 577, and authorities there cited; Wilkinson v. Wilkinson, 129 Ala. 279; Galloway v. Hendon, 131 Ala. 280; Milligan v. Pollard, 112 Ala. 465.
We fail to appreciate the distinction attempted to be made by counsel for appellee in their argument, between deeds and other contracts made by an insane person, Avith reference to the application of the abo\m stated doctrine. That, the principle upon which the deed of an insane person is declared Amid, in the case of Dougherty v. Powe, supra, is applicable alike to áll contracts of such person, is obvious. It is stated by the court in that case that, “one of the essential elements to the validity of a contract is the concurring assent of two minds. If one of the parties' to a contract is insane at the time of its execution, this essential element is wanting. The principle is the same Avhether the contract rests in parol or be by a deed.”
If then the contract of an insane person is void, it would seem to logically, follow, that a party contracting Avith him could not take any .benefit under such contract • — would get no title to- property obtained from such an one.
We have no precedent by our court directly upon the point presented for consideration by the ruling of the court below, and there seems to be conflict in the decisions of courts of other states upon the question.
The case of Carrier v. Sears, 4 Allen (Mass.) 336, is cited by appellee in support of the rulings of the co-urton the demurrers,'and it must be conceded that the court’s rulings are in full accord with the case. But in Massachusetts, and in the other states, so far as our investigation hais revealed, where courts have held that insanity is a personal plea, the ruling has been based upon *565the principle that the contracts of an insane person axe voidable and not void. The decision of the case cited above from, the Massachusetts court is rested expressly upon that principle.
In the case of Burke v. Allen, 29 New Hampshire, 106, it was held that the indorsement of a promissory note by the payee, is a contract which an insane person cannot make, because he hais not the power to give that consent which the contract requires, and that in an action upon the note by an indorsee against the maker, insanity in the payee and indorser at the time of the indorsement and transfer is a valid defense.
.This same view was taken of the question by the Supreme Court of Michigan in the case of Hannahs v. Sheldon, 20 Mich. 278. Cooley, J., delivered the opinion of the court.
There is another line of decisions which hold that the contracts of an insane person, are only voidable before such a. person is adjudicated insane by a court of competent jurisdiction, but that after such adjudication is liad, all contracts made by such person are void. — Bunn v. Postell, 107 Ga. 490; Harvey v. Hobson, 53 Me. 451; Eaton v. Eaton, 37 N. J. L. 108; Aetna Insurance Co. v. Sellers, 56 N. E. Rep. 97.
Leaving out of view the decision© of the courts in other jurisdictions, this court having held that the contracts of an insane person are void, and it being true that the transfer of a note of necessity, involves the making of a contract, we think it must follow as a logical sequence, tha t the transfer of a note by an insane person, must be held to he void. Further, as a payment of a note, such as will operate as an acquittance to- the payor, must be made to the person who has authority to receive the payment, the payor may impeach the contract of transfer by showing the insanity of the transferror at the time the contract was made.
It- follows that the court erred in sustaining the demurrer to pleas numbered 4, 5, 6 and 7, but we are of the opinion, and so hold, that plea 8 was subject to- the demurrer made to it and the court did not err in sustaining the demurrer to- plea 8.
*566Under the sworn plea denying that the plaintiff was the party really interested in the note sued on, evidence that the payee of the note was insane at the time he transferred the note was competent and the court erred in excluding such evidence.
The questions presented by the 8th and 9th assignments of error will probably not arise' on another trial and we deem it unnecessary to pass upon them here.
The judgment is reversed and the cauise remanded.
Reversed and remanded.
McClellan, C. J., Haralson and Dowdell, J. J., concurring.