
82 U.S. 9 (1872)
15 Wall. 9
DEXTER
v.
HALL.
Supreme Court of United States.

*15 Mr. Roscoe Conkling, for the plaintiff in error, and Mr. P.G. Galpin, contra.
*20 Mr. Justice STRONG delivered the opinion of the court.
The prominent question in this case is, whether a power of attorney executed by a lunatic is void, or whether it is only voidable. The Circuit Court instructed the jury that a lunatic, or insane person, being of unsound mind, was incapable of executing a contract, deed, power of attorney, or other instrument requiring volition and understanding, and that a power of attorney executed by an insane person, or one of unsound mind, was absolutely void. To this instruction the defendant below excepted, and he has now assigned it for error.
Looking at the subject in the light of reason, it is difficult to perceive how one incapable of understanding, and of acting in the ordinary affairs of life, can make an instrument the efficacy of which consists in the fact that it expresses his intention, or, more properly, his mental conclusions. The fundamental idea of a contract is that it requires the assent of two minds. But a lunatic, or a person non compos mentis, has nothing which the law recognizes as a mind, and it would seem, therefore, upon principle, that he cannot make a contract which may have any efficacy as such. He is not amenable to the criminal laws, because he is incapable of discriminating between that which is right and that which is wrong. The government does not hold him responsible for acts injurious to itself. Why, then, should one who has obtained from him that which purports to be a contract be permitted to hold him bound by its provisions, even until he *21 may choose to avoid it? If this may be, efficacy is given to a form to which there has been no mental assent. A contract is made without any agreement of minds. And as it plainly requires the possession and exercise of reason quite as much to avoid a contract as to make it, the contract of a person without mind has the same effect as it would have had he been in full possession of ordinary understanding. While he continues insane he cannot avoid it; and if, therefore, it is operative until avoided, the law affords a lunatic no protection against himself. Yet a lunatic, equally with an infant, is confessedly under the protection of courts of law as well as courts of equity. The contracts of the latter, it is true, are generally held to be only voidable (his power of attorney being an exception). Unlike a lunatic, he is not destitute of reason. He has mind, but it is immature, insufficient to justify his assuming a binding obligation. And he may deny or avoid his contract at any time, either during his minority or after he becomes of age. This is for him a sufficient protection. But as a lunatic cannot avoid a contract, for want of mental capacity, he has no protection if his contract is only voidable.
It must be admitted, however, that there are decisions which have treated deeds and conveyances of idiots and lunatics as merely voidable, and not void. In Beverly's Case,[*] which was a bill for relief against a bond made by Snow, a lunatic, it was resolved that every deed, feoffment, or grant, which any man non compos mentis makes, is avoidable, and yet shall not be avoided by himself, because it is a maxim of law that no man of full age shall be, in any plea to be pleaded by him, received by the law to stultify himself and disable his own person. A second reason given for the rule was, "because when he recovers his memory he cannot know what he did when he was non compos mentis." Neither of these reasons are now accepted, and the maxim no longer exists. There were other things ruled in Beverly's case, among which were these: that the disability of a lunatic is *22 personal, extending only to the party himself, except that it extends to privies in tenure, as lord by escheat, and privies in estate, as tenant in tail; but that privies in blood, as heirs, or privies in representation, as executors or administrators, might show the disability of the ancestor, or testator, or intestate. It was also resolved that acts done in a court of record were not avoidable even in equity. Lord Coke, in commenting on the case, remarked that "as to others there is a great difference between an estate made in person and by attorney; for if an idiot, or non compos mentis, makes a feoffment in fee in person, and dies, his heir within age, he shall not be in ward, or if he dies without heir the land shall not escheat; ... but if the feoffment is made by letter of attorney, although the feoffor shall never avoid it, yet after his death, as to all others, in judgment of law, the estate is void, and therefore in such case, if his heir is within age, he shall be in ward; or, if he dies without heir, the land shall escheat." Such also is the rule as stated in Fitz IIerbert's Natura Brevium.[*] This is plainly a recognition of the principle that the letter of attorney of an idiot or lunatic is void, though he may not be permitted himself to assert its nullity. His heir, and all others, may. The doctrine is also asserted that as against the heirs of a lunatic his deed is invalid, and this, we think, has been steadily maintained in England.
In Thompson v. Leach, reported in Carthew,[] and in Comberbach,[] a clear distinction was taken between the feoffment of a lunatic taking effect by livery of seizin, and his deed of bargain and sale, his surrender, or grant. The former was held to be voidable only because of the solemnity of the livery, while the latter were held to be void. The case was ejectment brought by a lunatic's heirs, and the controlling question was whether his deed was only voidable, or whether it was absolutely void. The grantor had a life estate upon which were dependent contingent remainders, and he made a deed of surrender. If his deed was at any time effective before the contingency happened, it merged *23 the tenancy for life, and destroyed the contingent remainders, and though the deed might afterwards be avoided by any means in law, yet the contingent remainders, being once extinct, could not be revived by any matter ex post facto. It was necessary, therefore, to determine whether the deed was a nullity or whether it was good until avoided. The court resolved that the deed was void, ab initio, because of the grantor's lunacy. It was said that "there is a difference between a feoffment and livery made propriis manibus of an infant, and the bare execution of a deed by sealing and delivery thereof, as in cases of grants, surrenders, releases, &c., which have their strength only by executing them, and in which the formality of livery of seizin is not so much regarded in the law, and, therefore, the feoffment is not void, but voidable; but surrenders, grants, &c., of an idiot are void ab initio." The case is a leading one, and it is in some respects more fully reported in Salkeld.[*] There it appears not only that the distinction mentioned is recognized, but that Holt, C.J., declared the deed of a person non compos mentis to be void; that if he grants a rent, and the grantee distrains for arrears, he may bring trespass; that his letter of attorney, or his bond, are void, because, as he stated, the law had appointed no act to be done for avoiding them. Thompson v. Leach has never been disturbed, and, so far as we know, has never been doubted. It was followed by the case of Yates v. Boen, in Strange,[] which was an action of debt upon articles. The defendant pleaded "non est factum," and offered to give lunacy in evidence. Upon the authority of Thompson v. Leach, and Smith v. Carr, decided in 1728, the evidence was received.
The doctrine of Thompson v. Leach was asserted also in Ball v. Mannin,[] decided in the House of Lords in 1829. In that case the sole question presented was, by agreement of counsel, whether the deed of a person non compos mentis was invalid at law. In the inferior court the judge had charged the jury *24 that "to constitute such unsoundness of mind as should avoid a deed at law, the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life," and refused to charge that the unsoundness of mind must amount to idiocy. The ruling was sustained by the Court of King's Bench in Ireland, and, on writ of error, by the Exchequer Chamber. The case was then removed to the House of Lords, and the judgment was affirmed. It is, therefore, the settled law of England, and it has been since the decision in Thompson v. Leach, that while the feoffment of an idiot, or lunatic, is only voidable, his deed, and especially his power of attorney, are wholly void. And now by act of Parliament, 7th and 8th Vict., ch. 76, § 7, his conveyance by feoffment, or other assurance, is placed on the same footing with his release or grant.
Sir William Blackstone, it is true, appears to have overlooked the distinction made in Thompson v. Leach; and in his Commentaries,[*] while admitting that the law was otherwise prior to the reign of Henry VI, asserted the doctrine that the conveyances of idiots and persons of non sane memory, as well as of infants and persons under duress, are voidable, but not actually void. But Sir Edward Sugden[] notices this statement with disapproval. His remarks are as follows: "When Beverly's case was decided it was holden that deeds executed by lunatics were voidable only, but not actually void, and therefore they could only be set aside by special pleading, and by the rule of law the party could not stultify himself. And Mr. Justice Blackstone, following the old rule, has laid down that deeds of lunatics are avoidable only, and not actually void. But in Thompson v. Leach the distinction was solemnly established that a feoffment with livery of seizin of a lunatic, because of the solemnity of the livery, was voidable only; but that a bargain and sale, or surrender, &c., was actually void. This, therefore, was the ground of the decision in Yates v. Boen. When the Chief *25 Justice remembered that an innocent conveyance, or a deed, by a lunatic, was merely void, he instantly said, that non est factum might be pleaded to it and the special matter be given in evidence."
In this country there has been inconsistency of decision. Some courts have followed Mr. Justice Blackstone, and Beverly's Case, without noticing the distinction made in Leach v. Thompson, Yates v. Boen, and other English cases. Such are the decisions cited from New York, beginning with Jackson v. Gumaer,[*] and those relied upon made in other States. Nowhere, however, is it held that the power of attorney of a lunatic, or any deed of his which delegates authority but conveys no interest, is not wholly void. And in Pennsylvania, in the Estate of Sarah De Silver,[] it was directly ruled that a lunatic's deed of bargain and sale is absolutely null and void, and the distinction between his feoffment and his deed was recognized. So also in Rogers v. Walker,[] which was an ejectment by a lunatic, it was held that a purchaser from her had no equity to be reimbursed his purchase-money, or the cost of improvements, and Chief Justice Gibson said: "Since the time of Thompson v. Leach,[§] it has been held that a lunatic's conveyance executed by sealing and delivery only is absolutely void as to third parties, and why not void as to the grantor? It was said to be so for the very unphilosophical reason, that the law does not allow him to stultify himself,  an early absurdity of the common law, which was exploded with us by Bensell v. Chancellor."[]
The doctrine that a lunatic's power of attorney is void finds confirmation in the analogy there is between the situation and acts of infants and lunatics. Both such classes of persons are regarded as under the protection of the law. But, as already remarked, a lunatic needs more protection than a minor. The latter is presumed to lack sufficient discretion. Reason is wanting in degree. With a lunatic it is wanting altogether. Yet it is universally held, as laid down by Lord Mansfield, in Zouch v. Parsons,[¶] that deeds of an infant *26 which do not take effect by delivery of his hand (in which class he places a letter of attorney), are void. We are not aware that any different rule exists in England or in this country. It has repeatedly been determined that a power of attorney made by an infant is void.[*] So it has been decided in Ohio,[] in Kentucky,[] in Massachusetts,[§] and in New York.[] In fact we know no case of authority in which the letter of attorney of either an infant or a lunatic has been held merely voidable.
It must, therefore, be concluded that the Circuit Court was not in error in instructing the jury that a power of attorney executed by an insane person, or one of unsound mind, is absolutely void.
This disposes of the only serious question in the case. There are other assignments of error, but they may be dismissed with brief notice. The only one which has any plausibility, and which needs particular notice, is that which complains of the refusal of the court to permit a medical witness to give his opinion respecting the sanity of John Hall at the time when he signed the power of attorney, basing his opinion upon the facts and symptoms stated in the depositions read at the trial. The witness was, however, allowed to give his opinion upon the testimony adduced by the plaintiffs. The record does not show fully what were the facts stated in the depositions, nor whether they were established by uncontradicted evidence. It may be, therefore, that, by the form in which the question was put, the witness was required not merely to give his opinion upon facts, but to ascertain and determine what the facts were. This of course was inadmissible. The rule is, as laid down in Greenleaf's Evidence,[¶] "If the facts are doubtful and remain to be found by the jury, it has been held improper to ask an expert who has heard the evidence what is his opinion *27 upon the case on trial; though he may be asked his opinion upon a similar case hypothetically stated."[*] The question asked was: "From the facts stated in these depositions, and the symptoms stated, what, in your opinion, was the state of John Hall's mind on December 27th, 1852, as to sanity or insanity?" It was to this the plaintiffs objected. But the witness gave his opinion, founded on all the testimony adduced by the plaintiffs tending to show insanity, and that opinion was that Hall was capable of doing business and of executing a power of attorney. He could have said no more had he been allowed to consider the evidence given by the defendants as well as that given by the plaintiffs. The defendants, therefore, received no possible injury from the ruling of the court. Hence this assignment cannot be sustained.
There remains one other exception to be considered, for the proper understanding of which reference must be made to the plaintiffs' title.[]
That the grants and confirmations relied on by the plaintiffs were effectual to vest in Hall the title to the land in dispute admits of no question, and it is not denied by the plaintiff in error. He claimed under Hall. But when this title had been given in evidence by the plaintiffs below, with proof that they were the children and heirs of Hall, and when they had rested in chief, the defendants asked the court to direct a verdict in their favor for the reason, among others, that under the State statute of March 5th, 1864, it was incumbent upon the plaintiffs, inasmuch as their action had not been commenced within a year after its passage, to show an actual possession in themselves or their ancestors within five years next before the commencement of the action, which they had failed to do. The court refused the direction, and correctly. At the time when the request was made it did not appear that the actual possession of the land had *28 not been enjoyed by the plaintiffs within five years next before the action was brought, and, therefore, they were presumed to have had such possession, in the absence of evidence of an adverse possession, and no such evidence has been given. The 9th section of the act of April 22d, 1850, which defined the time for commencing civil actions, expressly declares that in every action for the recovery of real property such a presumption shall be made in favor of one establishing a legal title. In addition to this three of the plaintiffs were minors when the title descended to them, and continued minors until within less than five years before the suit was brought, and one was a minor until 1872. The period of their disability was, therefore, not to be included in the statutory period of limitation.
It is probable that when the request to direct a verdict for the defendants was made, the supplementary act of April 4th, 1864, was overlooked. Certainly it has not been argued here that the plaintiffs below were affected by the act of March 5th of that year. But it is claimed the plaintiffs were barred by the statute of limitations of 1855. That, however, is not before us. The Circuit Court was asked to give no instruction in regard to it, and none was given. Besides, so far as the record exhibits, there was no evidence of continued adverse possession during the five years next proceeding the commencement of the suit.
There is nothing more in the case that requires particular notice; nothing which would justify our awarding a new trial.
JUDGMENT AFFIRMED.
NOTES
[*]  4 Reports, 123, b.
[*]  202, c.
[]  Page 435.
[]  Page 469.
[*]  Vol. 3, page 300; see also 2 Ventris, 198.
[]  Vol. 2, p. 1104.
[]  1 Dow & Clark, 380.
[*]  Book 2, page 291.
[]  I Sugden on Powers, 179; see also Shelford on Lunatics, 257-8-9.
[*]  2 Cowen, 552.
[]  5 Rawle, 111.
[]  6 Pennsylvania State, 371.
[§]  Carthew, 435.
[]  5 Wharton, 371.
[¶]  3 Burrow, 1805.
[*]  Saunderson v. Marr, 1 Henry Blackstone, 75; 2 Lilly, Abridgment, 69; 1 American Leading Cases, 248-9.
[]  Lawrence v. McArter, 10 Ohio, 37.
[]  Pyle v. Cravens, 4 Littell, 17.
[§]  Whitney v. Dutch, 14 Massachusetts, 462.
[]  Fonda v. Van Horne, 15 Wendell, 636.
[¶]  § 440.
[*]  Sills v. Brown, 9 Carrington & Payne, 601.
[]  See the statement of the title, supra, pp. 10, 11. The learned judge recapitulated it in nearly the same words as there given.
