Bensell v. Chancellor , 1840 Pa. LEXIS 222 ( 1840 )

The opinion of the Court was delivered by

Gibson, C. J.

The petition of Dr. Bensell to have his principal removed for mental incapacity, his agreement to pay for his maintenance as an insane patient in the Pennsylvania Hospital, his memoranda of a conversation with the deputy register, and his unfinished draught of a letter, are all evincive of an opinion that his principal was insane. But what has his opinion to do with the question whether he was actually sol We know that admissions by an agent in the course of the business, are evidence to charge the principal, because, in conterhplation of law, they are the admissions of the principal; but we know not on what grounds they can be received to affect one who has done nothing to make them his own. To suffer an agent’s by-play to impugn his acts, would open a wide field to collusion with his principal. Without, then, a ground laid by evidence of conspiracy with the party to be affected, no trace of which is discoverable in this record, an agent’s surmise that his principal was mad, is incompetent to prove him so.

Of the remaining point, little more need be said, than that it is ruled by Thompson v. Smith, (7 Serg. & Rawle, 209;) in which a title that had accrued during infancy, was barred at the expiration of the indulgence allowed to that disability, though coverture had intervened and continued, without intermission, till suit brought. The principle of that case arises directly out of the words of the statute. “ If any person,” it is said in the proviso, “ having such right or title, shall be, at the time such title first descended or accrued, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, orbeyond sea, and without theUni'ted States,” suchperson shall have ten years to bring suit after coming of age, &c. Thus, disabilities subsequently accruing, are not provided for; and for that reason, the statute, having once started, runs over every obstacle; which accords with the construction made by the British Courts of the proviso in the statute 21 Jac. 1, of which ours is a transcript, as in Cotteral v. Dutton, (4 Taunt. 825,) and Durore v. Jones, (4 T. R. 410.) Were it not for this, a play of alternate disabilities might keep a right of entry afoot indefinitely. If, then, there was such a right in Engle Bensell, who, though to be taken for a lunatic, was not an infant, the plaintiffs who represent him cannot call their infancy in aid of his disability; for though they may have been infants when the land was conveyed by his agent, it was not their infancy which prevented him from contesting the validity of the deed by an action.

It is said that being insane, and consequently incompetent, as it is supposed, to stultify himself, he had not a right of entry, because he could not prosecute it by action. If that were so, the saving, in cases like the present, would be unnecessary; for the heir or alienee would have a longer period of indulgence without it. To give him ten years from the cessation of the disability, did the statute only then begin to run, would be absurd. But that a lunatic would have right of entry, notwithstanding a well founded personal incapacity to prosecute it by action, especially when he might prosecute it by entry, is evident from the admitted capacity of a committee to prosecute it on his title; for it cannot be pretended that such a light, when founded on the invalidity of a lunatic’s act, arises, for the first time, at the finding of an office. In that respect, he might, were it necessary, be put in the predicament of an alien enemy, whose personal incapacity to sue is independent of his cause of action. But no rule founded on so absurd a supposition as that a man cannot tell whether he was out of his senses at a particular period, or what he did when he was so, can hold its ground; and the wonder is, that it has been endured so long by the British Courts. Who, that has conversed with an insane man, has not heard him speak of past transactions with entire accuracy; and is it credible that restoration to reason has the effect of effacing past impressions ? That memory is often more intense in madness than in health, that a maniac can frequently trace the disordered action of his mind through all its wanderings in the wildest delirium, and that he is, at the time, often semi-conscious of the fallacy of his illusion, is shown in a recent narrative of his own case, by an unfortunate son of the unfortunate premier, Mr. .Percival — a narrative which, by its minute delineation of the morbid sensibilities and distempered, but preternaturally acute, perceptions of a religious madman, has, it is conceded, added more to the stock of professional knowledge in regard to the moral treatment proper for an insane patient,'than all that had preceded it thrice told. But of what importance are his perceptions or his reminiscences 1 The question has regard, upon principle, not to what he can recollect, but what he can prove. How then does it stand on authority 1 That one who has been insane shall .not be received to allege his own infirmity, or to blemish himself, as it is sometimes improperly called, is by no means settled in England at this day. Till the reign of Henry the sixth, it is admitted on all hands, the law was held that he might; and Mr. Powell, in his Treatise on Contracts, page 19, admits, that if the reason of the thing coincided with it, the weight of authority .might be admitted to be that way; but he thinks it decisive that, unlike infancy, to which it has been compared, this particular disability may be feigned, and that the law therefore must necessarily preclude the possibility of fraud from it, by precluding an allegation of the fact from which it might spring. Now to say nothing of the impossibility of suppressing all transactions that may be infected with fraud, or of the inconsistency of precluding the lunatic himself from alleging his infirmity, in order to be secure against imposition, and yet allowing his committee to do it for him, it may be remarked, that the assertion of dissimilitude is unfounded in fact, as very clear proofs' of infancy may be counterfeited; and I have known a party, on the other hand, overreached by an assumed capacity to convey. On the other side of the question stands the name of Mr. Fonblanque, (b. 1, ch. 2, § 1, note f,) who thinks that Fitzher-bert’s doctrine, in opposition to that which is supposed to be currently received, is sustained, as well by his reasons as his authorities.. Sir William Blackstone speaks of the notion that a man shall not be admitted to plead his insanity, with evident disparagement. It is however but a question of pleading, after all; for no one has ventured to question the decision in Yates v. Boen, (2 Stra. 1104,) in which lunacy was given in evidence under non estfactum. Indeed, that precedent was followed in Foulder v. Silk, (3 Camp. 125,) and even so late as Bagster v. Portsmouth, (7 Dowl. & Ryl. 614,) Mr. Justice Littledale went the whole length of affirming that a deed might be avoided by a plea of lunacy ; though in Brown v. Joddrell, (3 Car. & Payne, 30,). Lord Tekterden intimated that a lunatic might not allege his incapacity, unless he had been imposed on in consequence of it. That however was said in reference to a contract for work and labour done; which, if not otherwise unfair, cannot be avoided by the lunatic, or any one else. Finally, in Turner v. Meyers, (1 Hagg. Cons. Rep. 414,) it was held by Sir William Scott, for clear law, that a party who was deranged at the time of his marriage, may come into the Ecclesiastical Court to maintain his own past insanity; and that a defect of capacity from that cause invalidates the contract of marriage as well as any other. Thus stands the controversy in England.

In the United States, we have an explicit opinion by the distinguished author of the Commentaries on American Law, (2 Kent, 451,) that the doctrine of Littleton and Coke is manifestly unjust, absurd, and actually exploded; in which he is sustained by Webster v. Woodford, (3 Day’s Rep. 90;) Grant v. Thompson, (3 Conn. Rep. 203;) Mitchell v. Kingman, (5 Pick. 431,) and Rice v. Peet, (5 Johns. 503.) Whatever, then, may be the rule in England, I take it to be 'settled in America, that the party himself may avoid his acts, except those of i’ecord and contracts for necessaries and services rendered, by allegation and proof of insanity. As then Engle Bensell had a right of entry on which he was competent to maintain an action, the bar was complete at the expiration of twenty-one years from the conveyance; for the statute, beginning its course by reason of his capacity to regain the possession, ran over the. intermediate freehold of Dr. Bensell under the will, and overreached the ten years allowed for the particular disability.

Judgment affirmed.