The respondent, in her petition for rehearing, argues, in effect, that a conveyance by a person non composmentis is void, and not merely voidable; and that, when the incompetency of the grantor is shown, nothing remains for the court to do except to decree the nullity of the conveyance without regard to the equities of the other parties thereto. Respondent's complaint was not drawn, the cause was not tried, and was not presented to this court upon this theory of the law.
It is not necessary to repeat again the issues made, and the evidence in support thereof, as to the ownership of the property, consideration for the conveyance, the undue influence alleged to have been exerted, and the fraud practiced in this action, as those matters were fully stated in the original opinion. We believe it is the settled law in nearly all of the American states that a conveyance of a person non compos mentis, who has not been placed under guardianship, is not void, but merely voidable. An exhaustive list of cases so holding will be found in the note to Riley v. Carter (Md.), 19 L.R.A. 489. An examination of these cases also shows that such was the rule of the common law, and we have been unable to find any provision of our statutes which in any manner modifies or abrogates this doctrine.
As to the further claim that where the grantor is shown to be non compos mentis at the time of the execution of the conveyance, but not under guardianship, keeping in mind the condition of the parties hereto, the title of the property, the consideration for the conveyance, the undue influence and fraud alleged to have been practiced, as shown by the record, and without expressing any opinion as to what equities of the appellants should be protected and preserved by the decree, because of the unsatisfactory condition of the record, we are of the opinion that it is the duty of courts exercising equitable jurisdiction in actions of this character to grant relief upon equitable terms and conditions only. *Page 292
"This is an action in equity, in which the extraordinary, and, to a certain extent, discretionary, jurisdiction of the court is invoked to set aside a deed. 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 — upon the universal maxim of that court that he who seeks equity must do equity. As, for instance, where conveyances have been obtained from a lunatic at a great undervalue, with reason to believe actual fraud on the part of the grantee, yet the amount actually paid must be refunded as a condition of relief. * * * `The court of chancery,' says Mr. Shelford, `will not, as a matter of course, interfere to set aside contracts entered into and completed by a lunatic, even though they be void at law, but the interference of the court will depend very much upon the circumstances of each particular case; and where it is impossible to exercise the jurisdiction in favor of the lunatic so as to do justice to the other party, the court will leave the lunatic to his remedy, if any, at law.'" (Canfield v. Fairbanks, 63 Barb. 465.)
This doctrine is also supported by the following decisions, which we do not deem necessary to review: Brown v.Miles, 61 Hun, 453, 16 N.Y. Supp. "251;Gribben v. Maxwell, 34 Kan. 8; Yauger v. Skinner, 14 N. J. Eq. 389; Riggan v.Green, 80 N. C. 237; Pearson v.Cox, 71 Tex. 246; Copenrath v.Kienby, 83 Ind. 18; Fay v.Burditt, 81 Ind. 433.
We have refrained from discussing or in any manner expressing an opinion under the assignments upon the sufficiency of the evidence to support the finding that the respondent was at the time of the execution of the trust deednon compos mentis.
It would be useless, as the form of the decree and the condition of the record, as shown in the former opinion, are such as to preclude the modification of the judgment upon equitable terms; and, as a retrial is necessary for the adjustment of the rights of the parties (apparent, at least, from the *Page 293 record now before us), the petitions of both the appellants and respondent for a rehearing will be denied.