ELEMENTS OF CONVEYANCING. BOOK III. OF THE MEANS OF TRANSFERRING REAL PART I. OF ORIGINAL CONVEYANCES. CHAP. I. OF CONTRACTS OR AGREEMENTS, CONSIDERED AS PRE- A &c. DEED is defined to be "a writing on paper or CONTRACTS, parchment, sealed and delivered, to prove the agree ment of the parties whose deed it is, to the things contained therein." As it appears by this definition, that a deed is the evidence of some prior agreement between the parties; and as the stability of the deed must consequently depend in a great measure upon the validity of the contract upon which it is founded, it will be proper, before we enter upon the immediate subject of deeds, to make some preliminary inquiries concerning the essential properties to a lawful contract, agreement or obligation. In doing which, I shall consider, CONTRACTS, &c. Who are capable of entering I. WHO ARE LEGALLY CAPABLE OF ENTERING INTO II. WITH OR TO WHOM A CONTRACT OR CONVEYANCE III. WHAT MAY BE THE SUBJECT OF A LAWFUL CON TRACT. IV. OF THE CONSIDERATION NECESSARY TO SUPPORT A CONTRACT. V. OF THE REQUISITES TO A VALID CONTRACT IN 1. WHO ARE LEGALLY CAPABLE OF ENTERING INTO A CONTRACT. As to which, it may be observed generally, that all into a contract. persons whomsoever are able to enter into an efficient agreement concerning their property, whether real or personal, unless prohibited by some physical incapacity, or some positive rule of law. These physical imbecilities arise from the nature of a contract, which being founded upon an active assent of the mind to the thing agreed upon, it is essential that the parties contracting should be capacitated to give that free and absolute assent to the terms of stipulation which natural justice requires should be given to every contract intended to be binding upon the parties and their representatives (1); it becomes necessary, therefore, to inquire who are, and who are not, deemed in the eye of the law capable of giving such assent; and also what circumstances have been holden to be a sufficient indication of it. Consent is an act of reason, accompanied by deliberation, and supposes, in the words of Barbeyrac», Grot. l. 2, c.11, S. 5. (1) In omnibus rebus quæ dominium transferunt concurrat oportet affectus ex utraque parte contrahentium; nam sive ex venditio sive donatio sive conductio sive quælibet alia causa contrahendi fuit, nisi animus utriusque consensit, perduci ad effectum id quod inchoatur non potest. &c. first, Un pouvoir physique de consentir; secondly, Un pou- CONTRACTS, voir morale; thirdly, Un usage bien serieux et parfaitement libre de ses deux sortes de pouvoirs. That is, a physical power of consenting, a moral power, and a deliberate and free use of those powers. Persons wanting either of these requisites, either actually, or in consideration of law, are consequently incapable of entering into any efficient agreement. Under this description of disability, evidently come idiots, lunatics, and infants, as being all of them more or less destitute of deliberation and reflection (1). Whence it follows, that all contracts entered into by such persons during their state of mental debility, are utterly void; and it was the same of the Roman law (2). But as, with respect to lunatics, it is possible that an appearance of insanity may be assumed for the purposes of fraud, the policy of the law will not permit a non compos to take advantage of his own incapacity, by pleading, on the return of his reason, his previous, disability (3); but still the law being as anxious to protect real imbecility, as to discourage Puff. I. Nat. & Gent. lib. 3, c.6. с (1) Furiosus nullum negotium gerere potest quia non intelligit quod agit. Infans et quia infantia proximus est non multum a furioso distant. Inst. Lit. 3, T. 20, s. 8. (2) It was formerly much agitated in the courts whether deeds, and other solemn instruments of idiots, &c. were actually void ab initio, or only voidable; but the cases in which it has been holden that the deeds of such persons are not absolutely void, but only voidable, appear to proceed upon the notion that non est factum cannot be pleaded to them, because as they have the form, (though not the operation) of deeds, they cannot be avoided without showing the special matter; but the better opinion seems to be, that as such an imbecility goes to the gist of the action, and proves the contract a nullity, it may be taken advantage of on the general issue. See i Pow. Contr. 11; 1 Fonb. Tr. Eq. 47, n. (d); but see also, Yates v Bowen, Stra. 1104. (3) The old cases relative to this point are contradictory, but the position here advanced seems to be most conformable to the better opinion. See the contrary authorities on this subject, and the reasons on which they are founded, collected and observed upon, 1 Pow. Contr. 14. &c. CONTRACTS, fraud and dissimulation, it has been holden, on the construction of the statute de prerogative regis, that if the idiot be really found to be such, by inquisition of office, on the writs de idioto, or lunatico inquirendo, any contracts or alienation he may have improvidently entered into to his prejudice during the period of his imbecility, may be avoided on a scire facias by the king, who is bound, as paier patria, to protect his subjects in the due enjoyment of their rights and property. And, if the non compos continues so for life, his acts are avoidable by his heir, or other representatives; for it would be highly unreasonable, that the representatives should be bound by the acts of an ancestor who was incapable of knowing what he did'. This liability of contracts to be avoided, on account of the imbecility of the mind of the contracting party, does not, however, it is to be observed, extend to acts done in a court of record, as fines, recoveries (and uses declared of them, which are a part of the assurance) recognizances, and the like, which neither the parties nor their representatives are permitted to avoid. The reason of which is, "not that the law binds such persons, for therein jura naturæ sunt immutabilia still, but clean contrary, because the law finds them persons not so disabled, nor admits the averment of such disablement, because it is certified by the invincible and indisputable credit of the Judge, that they were perfect and able persons: and so here is a law of policy that doth not cancel the law of nature, but doth only bound it in point of form and circumstance." For which reason, married women are not permitted to avoid a fine, &c. though their acts, like those of idiots, are in general (as will be seen hereafter), either absolutely void or avoid d 17 Ed. 2, c. 9 and 10. See Beverley's case, 4 Co. 123, b; Attorney General v. Parkhurst, 1 Chan. Ca. 112; Tr. Eq. b. 1, c. 2, s. 1; and see Fonb. Eq.48, notes. f Co. Lit. 247. Per Hobart, Ch. Just. in Needler v. Bishop of Winchester, Hob. Rep. 220; and see 1 Fonb. Eq. 85, n. (d). &c.. able. The rule of law, in these cases, being fieri non CONTRACIN debet, sed factum valet; and Mansfield's case, furnishes a striking instance of the extreme anxiety of courts of law to protect the authority of their records; for though the fine was levied by a man obviously an idiot, and by a most gross contrivance; and though Lord Dyer observed, that the Judge who had taken it ought never to take another, yet he allowed it to prevail. As, by the common law, a fine might be avoided, on account of fraud, or even on account of infancy, by inspection, during the infancy, it seems remarkable, that idiocy or lunacy should not have been held entitled to the same effect; but Mansfield's case abundantly proves, that the grossest imbecility of mind was not, at law, a ground of annulling the record. But in equity, the remainder-man was relieved against a fine levied by an idiot, even against a purchaser. The Court of Chancery, however, in the case of fraud, does not absolutely set aside or vacate the fine; but considering those who have taken it under such circumstances as trustees, decrees a re-conveyance of the estate to the persons prejudiced by the fraud; and though this does not distinctly appear to be the practice, in the case of fines levied by idiots or lunatics, yet, from the argument in Day v. Hungat', such may be inferred to be the rule of proceeding ", and in equity the maxim of law relative to the invalidity of the acts of idiots, &c. was always understood, of acts done by the lunatic in prejudice of others, that he should not be admitted to excuse himself on pretence of lunacy; but not as to acts done by him in prejudice of himself, for this can have no foundation in reason and natural justice". |