The marriage of a person insane is void; Inhabitants of Middleborough v. Inhabitants of Rochester, 12 Mass. 363 ; Gathings v. Wil liams, 27 N. C. 487, 44 Am. Dec. 49; Powell v. Powell, 18 Kan. 371, 26 Am. Rep. 774; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343; L. R. 1 P. & D. 335; Waymire v. Jetmore, 22 Ohio St. 271; True v. Raney, 21 N. H. 52, 53 Am. Dec. 164. A marriage con tracted while one party was insane from delirium tremens was held void ; Clement v. Mattison, 3 Rich. (S. C.) 93 ; but mere weak ness of mind not amounting to derangement is not sufficient; Rawdon v. Rawdon, 28 Ala. 565 ; Crump v. Morgan, 38 N. C. 91, 40 Am. Dec. 447; and for that merely, or intoxica tion, a court has no'power to declare a mar riage mill and void; Elzey v. Elzey, 1 Houst. (Del.) 308. The same degree of mental ca pacity which enables a person to make a valid deed or will is sufficient t'o enable him to marry ; Inhabitants of Atkinson v. Inhab itants of Medford, 46 Me. 510. It was held that a marriage celebrated by a person while insane might be affirmed upon recov ery without a new solemnization ; Cole v. Cole, 5 Sneed (Tenn.) 57, 70 Am. Dec. Other civil contracts made by insane per sons are voidable, not void ; Turner v. Rusk, 53 Md. 65; George v. R. Co., 34 Ark. 613; McClain v. Davis, 77 Ind. 419; Van Patton v. Beals, 46 Ia. 62 ; Ingraham v. Baldwin, 9 N. Y. 45 ; Broadwater v. Dame, 10 Mo. 277; Ordron, Jud. Asp. Insan. ch. 6.
With respect to contracts, persons non compos mentis and infants are said to be parallel, both in law and reason ; Seaver v. Phelps, 11 Pick. (Mass.) 304, 22 Am. Dec. 372 ; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsha (Ky.) 236, 19 Am. Dec. 71. A power of attorney made by an insane person is ab solutely void; Dexter v. Hall, 15 Wall. (U. S.) 9, 21 L. Ed. 73; and a contract execu tory on both sides cannot be enforced against an insane person; Ewell, L. Cas. Disab. 025, where the cases are collected.
The test of legal capacity to contract, it was said, is that the party is capable of rec ollecting the property he is about to dispose of, the manner of distributing it, and the object of his bounty ; the particular act be ing attended with the consent of his will and understanding ; Miller v. Rutledge, 82 Va. 863, 1 S. E. 202.
Pollock enumerates three different theories as to contracts by insane persons which "have, at dif ferent times, been entertained in English courts and supported by respectable authority ;" Poll. Cont. 87. These theories, with some of the authorities cited in support of them, are substantially as fol lows: 1. That it is no ground, whatever, for avoid ing a contract ; Co. Litt. 2 b; 4 Co. 123 b; Bract. fol. 100 a, 165 b. As to this it is characterized as a frivolous technicality and doubtful whether it was really supported by the authorities Coke had before him ; Poll. Cont. 89. 2. If one who contracts is too
drunk or insane to know what he is about, his agreement is void for want of the consenting mind, but if his mind is only so confused or weak that he may know what he is about, but not fully under stand the terms and effect, and this is known to the other party, the contract will be voidable at his op tion. The first division of this class would he sim ply void for want of consent ; 2 Stra. 1104; 3 Campb. 33; Reinskopf v. Rogge, 37 Ind. 207; Burke v. Al len, 29 N. H. 106, 61 Am. Dec. 642; the second would come under the head of fraud ; Miller v. Finley, 26 Mich. 249, 12 Am. Rep. 306 ; Wilson v. Oldham, 12 B. Monr. (Ky.) 55; Caulkins v. Fry, 35 Conn. 170. 3. The doctrine which has prevailed as already stat ed that all contracts by insane persons are voidable, not void, see supra.
In some courts what has been termed the Massa chusetts doctrine prevails that contracts of insane persons are voidable without any reference to the knowledge of the other party ; Seaver v. Phelps, 11 Pick. (Mass.) 304, 22 Am. Dec. 372; in others whit is termed the English doctrine (because supported by more recent English authorities) that they are voidable if the other party knows of the insanity ; Stockmeyer v. Tobin, 139 U. S. 176, 11 Sup. Ct. 504, 35 L. Ed. 123; Martinez v. Moll, 46 Fed. 724 ; (un der La. Civ. Code) ; [1892] 1 Q. B. 599 ; Lancaster County Nat. Bank v. Moore, 78 Pa. 407, 21 Am. Rep. 24; and reasonable ground for knowledge is equiv alent thereto; Lincoln v. Buckmaster, 32 Vt. 652; and there is still a third doctrine supported by some courts that if the other party was ignorant and the contract reasonable and not capable of rescission, so that the parties could be restored to their orig inal position, the contract will be sustained ; Mat thiessen & Welchers Refining Co. v. McMahon's Adm'r, 38 N. J. L. 536: Young v. Stevens, 48 N. H. 133, 2 Am. Rep. 202, 97 Am. Dec. 592; Northwest ern Mut. Fire Ins. Co. v. Blankenship, 94 Ind. 535, 48 Am. Rep. 185 ; Riggs v. Tract Society, 84 N. Y. 330 ; Alexander v. Haskins, 68 Ia. 73, 25 N. W. 935 ; Appeal of Kneedler, 92 Pa. 428.
The cases last cited rest upon Molton v. Camroux, 2 Ex. 487; 4 id. 17, which is considered the corner stone of the law as to contracts with insane per sons ; Poll. Cont. 92 ; Leake, Cont. 248 ; hut has been recently characterized as containing "loose statements" which have given rise to "an anoma lous doctrine ;" Harr. Cont. 235.
Whatever may he said of it, the case undoubtedly settled the law that such a contract was voidable and not void, and this was confirmed inferentially by a later case which held that such a contract might be ratified after the disability had passed ; L. R. 8 Ex. 132.