ported by an adequate consideration. If, however, the sale is at auction, it will be some proof of fairness and sufficiency of price, and if the sale is made with the knowledge and assent of the ancestor it will be good. But it seems that the rule is confined to those expectancies that combine the relation of heir with that of remainder-man and reversioner. If the expectant is not heir, but is simply entitled to a remainder or reversion by virtue of some instrument or settlement, he may sell and assign his future interest, and such sale will not be avoided unless some of the common rules of equity are violated by the purchaser. In such cases there is no fraud upon parents or third persons, consequently there is nothing contrary to public policy in such purchases.1

§ 189. Another kind of constructive trust arises from the mental incapacities of parties to enter into contracts. Thus

Varick v. Edwards, 1 Hoff. 383; Boynton v. Hubbard, 7 Mass. 112; Fitch v. Fitch, 8 Pick. 480; Trull v. Eastman, 3 Met. 121; Poor v. Hazleton, 15 N. H. 564; Nimmo v. Davis, 7 Tex. 266; Jenkins v. Pye, 12 Pet. 257; Davidson v. Little, 22 Pa. St. 252.

2 Fox v. Wright, 6 Madd. 111; Shelley v. Nash, 3 Madd. 232; Newman v. Meek, 1 Freem. Ch. 441; Erwin v. Parham, 12 How. 197.

3 Fitch v. Fitch, 8 Pick. 480; Trull v. Eastman, 3 Met. 121; Nimmo v. Davis, 7 Tex. 266; King v. Hamlet, 2 M. & K. 456. In Ohio, however, it has been held that a contract is invalid by which a son released to his father, in consideration of an advancement, all his expectancies upon the father's estate. Needles v. Needles, 7 Ohio St. 432. The case is not sustained by other authorities, and seems not to rest upon the principles applicable to such transactions.

Cribbins v. Markwood, 13 Gratt. 495; Dunn v. Chambers, 4 Barb. 376; Davidson v. Little, 22 Pa. St. 252; Wiseman v. Beake, 2 Vern. 121; Cole v. Gibbons, 3 P. Wms. 290; Barnardiston v. Lingood, 2 Atk. 133; Bowers v. Heaps, 3 V. & B. 117; Davis v. Marlborough, 2 Swans. 130; Addis v. Campbell, 4 Beav. 401; Nickolls v. Gould, 2 Ves. 422; Henley v. Axe, 2 Bro. Ch. 17; 2 Swans. 141; Griffith v. Spratley, 2 Bro. Ch. 179; 1 Cox, 383; Moth v. Atwood, 5 Ves. 845; Montesquieu v. Sandys, 18 Ves. 302. The peculiar character and position of sailors call for the interposition of courts when they are defrauded, and when one had sold his prizemoney for a small sum, the Master of the Rolls said, that it was reasonable to regard them as young heirs, and to relieve them accordingly. How v. Weldon, 2 Ves. 515.

a non compos mentis cannot make a binding contract.1 The deed of such person is either absolutely void, or at least voidable, and equity will give relief by declaring a party taking under such a conveyance to be a trustee, and by ordering him to execute a reconveyance. Whether a person has capacity enough to make a contract, is always a question of fact in each particular case; for mere weakness of mind, not amounting to idiocy or insanity, is no ground for avoiding a contract. Courts cannot measure the extent of a party's understanding. If, therefore, a person is not an idiot nor an insane person, he may enter into contracts, although he may be of a low order of intelligence and of weak reasoning powers. At the same time such persons are easily imposed upon and defrauded; and if it appears that one of the parties to a contract is of weak mind and feeble powers, the whole transaction will be carefully investigated, and the conduct of the person procuring such contract will be closely scrutinized; for arts and practices that would be perfectly harmless in a transaction with a man of high intelligence and prudence and great power of observing and reasoning, may, and probably would, deceive and mislead a person of weak mind and feeble powers, although not incapable of

1 Chesterfield v. Janssen, 2 Ves. 155.

2 Allis v. Billings, 6 Met. 415; Breckenridge v. Ormsby, 1 J. J. Marsh. 239; Price v. Berrington, 3 Mac. & G. 486; Molton v. Camroux, 2 Exch. 487; 4 Exch. 17; De Silver's Est. 5 Rawl. 111; Bensell v. Chancellor, 5 Whart. 376; Beals v. Lee, 10 Barr, 56.

Rushloy v. Mansfield, Toth. 42; Mansfield's Case, 12 Co. 123; Addison v. Mascall, 2 Vern. 678; 3 Atk. 110; Price v. Berrington, 7 Hare, 394; 3 Mac. & G. 486; Addison v. Dawson, 2 Vern. 678; Welby v. Welby, Toth. 164; Wright v. Booth, ib. 166; Wilkinson v. Brayfield, 2 Vern. 307; Clark v. Ward, Pr. Ch. 150; Ferres v. Ferres, Eq. Ab. 695; Attorney-General v. Parnther, 3 Bro. Ch. 441.

Osmond v. Fitzroy, 3 P. Wms. 130; Willis v. Jernegan, 2 Atk. 251; 1 Story's Eq. Jur. § 235; Ex parte Allen, 15 Mass. 58; Hadley v. Latimer, 3 Yerg. 537; Mann v. Betterley, 21 Vt. 326; Thomas v. Sheppard, 2 McCord, Eq. 36; Rippy v. Gant, 4 Ired. Eq. 447; Mason v. Williams, 3 Munf. 126; Morrison v. McLeod, 2 Dev. & Bat. Eq. 221; Green v. Thompson, 2 Ired. Eq. 365; Bath & Montague's Ca. 3 Ch. Ca. 107.

entering into contracts and transacting business generally.1 Therefore the weakness of a party's mind is a very material fact in determining the character of a transaction, and if, in contracts with such persons, there is found the least art or stratagem, or any undue influence, or any ingredient of fraud or suspicion of unfairness, courts will set the contract aside, or convert the offending party into a trustee. Upon these principles, if the contract is of an unusual, unreasonable, or extraordinary character, or if it is without consideration, or upon an inadequate consideration, or if the instrument falsely recites a consideration, or if there is actual proof of undue influence, or of art or circumvention, or if there is a fiduciary, confidential, or influential relation between the parties, courts will interfere and protect a person of weak mind from his contracts.

1 Bridgman v. Green, Wilm. 61; 2 Ves. 627; Donnegal's Case, ib. 407; Gartside v. Isherwood, 1 Bro. Ch. 560; Blackford v. Christian, 1 Knapp, 77; Dunn v. Chambers, 4 Barb. 376; Clark v. Malpas, 4 De G. F. & J. 401.

2 Griffin v. De Veulle, 3 Wood. Lect. App. 16; Nottige v. Prince, 2 Gif. 246; Longmate v. Ledger, ib. 157; Baker v. Monk, 33 Beav. 419; Boyse v. Rossborough, 6 H. L. Ca. 2; Harding v. Handy, 11 Wheat. 103; Tracey v. Sackett, 1 Ohio St. 54; Whitehorn v. Hines, 1 Munf. 557; Whelan v. Whelan, 3 Cow. 537; Deatly v. Murphy, 3 A. K. Marsh. 472; Brogden v. Walker, 2 H. & J. 285; Rumph v. Abercrombie, 12 Ala. 64.

8 Fane v. Devonshire, 2 Bro. P. C. 77; Bridgman v. Green, 2 Ves. 627; Dent v. Bennett, 7 Sim. 539; 4 M. & Cr. 629; Malin v. Malin, 2 Johns. Ch. 238; Bennett v. Vade, 2 Atk. 235; Nantes v. Corrock, 9 Ves. 181; Willan v. Willan, 16 Ves. 72; Ball v. Maurice, 3 Bligh (N. s.), 1; 1 Dow (N. s.), 392.

4 Ibid.; Clarkson v. Hanway, 2 P. Wms. 203; Gartside v. Isherwood, 1 Bro. Ch. 558; Hutchinson v. Tindall, 2 Green, Ch. 357; Rumph v. Abercrombie, 12 Ala. 64; Fillmer v. Gott, 7 Bro. P. C. 70; Hunt v. Moore, 2 Barr, 105.

5 Gibson v. Russell, 2 N. C. C. 104; Harvey v. Mount, 8 Beav. 439. • Portington v. Eglington, 2 Vern. 189; Gartside v. Isherwood, 1 Bro. Ch. 558; Bridgman v. Green, 2 Ves. 627; Edmunds v. Bird, 1 V. & B. 542; Fox v. Macreth, 2 Bro. Ch. 420.

7 Kennedy v. Kennedy, 2 Ala. 571; Brice v. Brice, 5 Barb. 533; Buffalow v. Buffalow, 2 Dev. & Bat. Eq. 241; Osmond v. Fitzroy, 3 P. Wms.

§ 190. Mental weakness is not of itself a sufficient ground for avoiding an agreement, but it must appear that some advantage was taken of it to procure a favorable contract; and if the other party stood in some fiduciary relation to the person of weak mind, the burden is upon him to show that the contract was in every respect fair, and that no advantage was obtained from the influential position on the one hand, or from the feebleness of mind on the other. And it is quite immaterial from whence the mental weakness arises. It may arise from a natural and permanent imbecility of mind, or it may arise from some temporary illness or debility, or from the weakness and infirmity of extreme old age. Each case must depend upon its own circumstances. If there is a fixed and permanent state of idiocy or insanity, or if the party is a declared lunatic and his affairs are in the hands of a committee or of a guardian, there can be little or no doubt. Questions generally arise where there is not this entire want of capacity, where no general rule can be laid down, but the court is left to judge of the capacity of the contracting party, of the circumstances under which the contract was made, and whether from all the facts in the case the contract ought in equity and good conscience to be sustained. Extreme old age, accompanied by great infirmity; or extreme weakness and feebleness of mind, arising from temporary illness or permanent imbecility, stopping short of absolute incapacity, are all pertinent facts, tending to show, if accompanied by other circumstances, a fraudulent contract; but if upon all the evidence the contract is a fair one, if the enfeebled person is surrounded by his friends, who understand the transaction and explain it to the party, it will not be set aside.1

130; Dent v. Bennett, 7 Sim. 539; 4 M. & C. 269; Cruise v. Christopher, 5 Dana, 181; Whipple v. Clure, 2 Root, 216; Brooke v. Berry, 2 Gill, 83; McCraw v. Davis, 2 Ired. Eq. 618; Huguenin v. Baseley, 14 Ves. 273; Griffith v. Robins, 3 Madd. 191; Whelan v. Whelan, 3 Cow. 537. 1 Griffith v. Robins, 3 Madd. 191; Harding v. Handy, 11 Wheat. 193; Dent v. Bennett, 7 Sim. 539; Attorney-General v. Parnther, 3 Bro. Ch.

§ 191. Substantially the same rules apply to deeds and instruments executed by a drunken person. Drunkards, while laboring under the frenzy of drink, are non compotes mentis by their own act,1 and it is said that they may plead non est fac tum to a deed executed while so drunk that they do not know what they are doing.2 In such case there can of course be no intelligent consent to any contract. But equity will not always interfere to protect a drunken man from the folly of his own acts, and will not, on account of drunkenness alone, set aside a contract or convert the other party into a trustee.3 And this is more especially the rule where the object of the contract is to carry out a family settlement, or the contract is fair and reasonable in its terms. But if there is any contrivance or management to induce drunkenness and to procure a contract, or if there was any unfair advantage taken of the drunkenness to procure a contract, it would be an actual fraud, and the court will not allow a party to retain any advantage procured in such manner, nor would it lend its aid to carry it into effect.5

443; Hunter v. Atkins, 3 M. & K. 146; Lewis v. Pead, 1 Ves. Jr. 19, Pratt v. Barker, 1 Sim. 1; 4 Russ. 507; Rippy v. Gant, 4 Ired. Eq. 447; Gratz v. Cohen, 11 How. 1.

1 Co. Litt. 247 a, 447 a; Beverley's Case, 4 Co. 124; Hendrick v. Hopkins, Cary, 93.

2 Cole v. Robins, Bull. N. P. 172; Cook v. Clayworth, 18 Ves. 12; Reynolds v. Waller, 1 Wash. 212; Rutherford v. Ruff, 4 Des. 350; Gore v. Gibson, 13 M. & W. 623; Barrett v. Buxton, 2 Ark. 167; Peyton v. Rawlins, 1 Hayw. 77; Clifton v. Davis, 1 Pars. Eq. 31; French v. French, 2 Ham. 214; Wigglesworth v. Steers, 1 Hen. & Munf. 70; Shaw v. Thackray, 1 Sm. & Gif. 537.

8 Johnson v. Meddlicott, 3 P. Wms. 131, n.; Cory v. Cory, 1 Ves. 19; Nagle v. Bayler, 2 Dr. & W. 60; Cooke v. Clayworth, 18 Ves. 12; Maxwell v. Pittinger, 2 Green, Ch. 156; Morrison v. McLeod, 2 Dev. & Bat. Eq. 221; Whitesides v. Greenlee, 2 Dev. Eq. 152; Moore v. Read, 2 Ired. Eq. 580; Hotchkiss v. Fortson, 7 Yerg. 67; Belcher v. Belcher, 19 Yerg. 121; Hutchinson v. Brown, 1 Clark, Ch. 408; Harbison v. Lemon, 3 Blackf. 51.

4 Cory v. Cory, 1 Ves. 19; Cooke v. Clayworth, 18 Ves. 12.

Johnson v. Meddlicott, 3 P. Wms. 131; Say v. Barwick, 1 V. & B.