
81 S.E.2d 162 (1954)
240 N.C. 52
LAWSON
v.
BENNETT.
No. 19.
Supreme Court of North Carolina.
April 7, 1954.
*166 Wm. Reid Dalton, Reidsville, A. D. Folger, Jr., Madison, for plaintiff appellant.
Brown, Scurry & McMichael, Reidsville, for defendant appellee.
WINBORNE, Justice.
The foremost question here is this: Where a spouse, the wife in the instant case, has suffered impairment of mind to such an extent that she does not have sufficient mental capacity to understand what she is engaged in doing, and the nature and consequences of her act, may the other spouse, the husband here, maintain an action *167 against her for divorce on the ground of two years' separation, that is, under the provisions of G.S. § 50-6? The trial judge held that he did not have such right, and, upon careful consideration of the question, this Court affirms.
In this connection, the General Assembly has seen fit to legislate specifically and specially in respect to the granting of absolute divorce in all cases where a husband and wife have lived separate and apart by reason of the incurable insanity of one of them, upon the petition of the sane spouse. G.S. § 50-5, subsection 6, as amended.
Therefore, in keeping with well established principle the remedy provided is exclusive. In Committee of Grievances of North Carolina State Bar Ass'n v. Strickland, 200 N.C. 630, 158 S.E. 110, 112, in opinion by Brogden, J., this Court said: "The courts everywhere are in accord upon the proposition that, if a valid statutory method of determining a disputed question has been established, such remedy so provided is exclusive and must be first resorted to and in the manner specified therein." This principle has been quoted and applied in many decisions of this Court, among which are these: Maxwell v. Hinsdale, 207 N.C. 37, 175 S.E. 847; Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24; Wilkinson v. Boomer, 217 N.C. 217, 7 S.E.2d 491; Riddick v. Davis, 220 N.C. 120, 16 S.E.2d 662; Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504.
Hence, the jury having answered the fourth issue in the negative, and the provisions of G.S. § 50-5(6) not having been invoked, the trial court properly held that plaintiff cannot maintain an action upon the grounds alleged in his complaint.
Appellant, the plaintiff, also excepts to and assigns as error the ruling of the trial court in permitting defendant to amend her further answer to plead affirmatively the invalidity of the separation agreement of 20 October, 1950, by reason of her mental incompetency, as hereinabove set forth.
As to this, ordinarily, such plea is not permitted in an action for absolute divorce on the ground of two years' separation. Jenkins v. Jenkins, 225 N.C. 681, 36 S.E.2d 233. But here the pleadings present a different, and particular situation created by plaintiff.
Defendant, answering the complaint in respect to the alleged separation, sets up as a defense that she was mentally incompetent. Thereupon plaintiff, in reply thereto, alleges that the deed of separation of 20 October, 1950, was a full and complete settlement between plaintiff and defendant, and sets up the deed of separation "as a full and complete bar to the defendant's right to recover on her cross-action in this cause". And it was in answer thereto that defendant, by permission of the court, was permitted to amend her answer. Under these circumstances the fourth issue was proper, and plaintiff having initiated it, may not now complain.
However, the assignment of error based upon exception to the judgment is well taken. Carawan v. Clark, 219 N.C. 214, 13 S.E.2d 237, 238. The principle applied to the factual situation there is applicable to case in hand. Defendant here occupies the position of plaintiff there. And the Court in opinion by Barnhill, J., now C. J., had this to say:
"A contract entered into by a person who is mentally incompetent is voidable and not void. * * * At the election of the incompetent and upon the return of the consideration and the restoration of the status quo, it will be annulled by a court of equity.
"Under certain conditions such a contract may be avoided by the incompetent even when he is unable to place the other party to the contract in statu quo, but the great weight of authority supports the rule that where a contract with an insane person has been entered into in good faith, without fraud or imposition, for a fair consideration, of which the incompetent has received the benefit, without notice of *168 the infirmity, and before an adjudication of insanity, and has been executed in whole or in part, it will not be set aside unless the parties can be restored to their original position. * * *
"Thus, in an action to rescind a contract, as here, for that the plaintiff was, at the time, mentally incompetent, the plaintiff must show insanity or mental incompetency at the time the contract was entered into. Upon such showing the contract will be annulled unless it is made to appearthe burden being on the defendantthat the defendant (1) was ignorant of the mental incapacity; (2) had no notice thereof such as would put a reasonably prudent person upon inquiry; (3) paid a fair and full consideration; (4) took no unfair advantage of plaintiff; and (5) that the plaintiff has not restored and is not able to restore the consideration or to make adequate compensation therefor."
Applying these principles to case in hand: The verdict of the jury on the fourth issue establishes the mental incompetency of defendant at the time the deed of separation of 20 October, 1950 was entered into. Upon such showing the deed of separation will be annulled unless plaintiff is able to carry the burden imposed upon him as indicated in the Carawan case, supra.
However, in the event it becomes necessary for the court to make an allowance for subsistence, the court should take into consideration the property received by defendant under the deed of separation and now in her possession and unused for her past subsistence.
Therefore, for these reasons, even though plaintiff, on the verdict rendered, is not entitled to a decree of divorce, the action will not be dismissed, but will be retained for further proceedings as to right and justice appertains and the law provides.
Error and remanded.
