Abbott v. Creal

Day, J. I. It is conceded that Amanda Creal was not of sufficient mental capacity to contract, at the time the mortgage in question was executed. It is claimed by the [177] appellants that the fifth finding of the referee is not supported by the evidence, and that Abbott had knowledge, sufficient at least to put him upon his guard, as to the mental incapacity of Amanda Creal, before the mortgage in question was accepted.We have examined the evidence upon this branch of the case carefully, and we unite in the conclusion that it does not support appellant’s position. Resides, there is no statement in the abstract that it contains all of the evidence, or all of the evidence applicable to'this branch of the case. In the state of the record we cannot disturb any of the referee’s finding of facts. i. contract : mentafunparty.ness °f II. It is claimed that, under the findings of facts by the referee, the mortgage is void as to the homestead. It has been set^ecl as the law of this State that persons of unsound mind will be held liable as to executed-contracts where the transaction is in the ordinary course of business, is fair and reasonable, and the mental condition was not known to the other party, and the parties cannot be put in statu quo. Behrens v. McKenzie, 23 Iowa, 333; Ashcraft v. DeArmond, 44 Id., 229. It is claimed, however, that under section.1990 of the Code a conveyance or encumbrance of the homestead is of no validity unless the husband, and wife concur in and sign the same joint instrument, and that, as Amanda Creal was mentally unsound, she could not. concur in the mortgage, and hence no encumbrance of the. property was effected. This reasoning would invalidate all contracts of persons of unsound mind, for it is essential to the validity of a contract that there should be a concurrence of . the minds of the contracting parties. The véry point in controversy was determined adversely to the position of appellant in Ashcraft v. De Armond, supra, for a portion of the land involved in that case, and to which- the deed of conveyance was upheld, was the homestead of the party whose mental unsoundness was alleged, and, for the purposes of the decision, conceded. Following that case, the decree in this must be Affirmed.