Jacks v. Deering

HENSHAW, J.

This is the second appeal. The first appeal will be found reported in

Jacks

v.

Estee,

139 Cal. 507, [73 Pac. 247], Mr. Estee having died, and Mr. Leering having been substituted as administrator in his place.

Some of the facts are set forth in the opinion above cited. Others will be noticed as may be necessary. Section 38 of the Civil Code provides: “A person

entirely without under

[274]

standing

has no power to make a contract of any kind, but he is liable for the reasonable value of things furnished to him necessary for his support or for the support of his family.” Section 39 of the same code provides: “A conveyance or other contract of a person of unsound mind,

but not entirely without understanding,

made before his incapacity has been judicially determined, is subject to rescission as provided in the chapter oh rescission of this code.”

Upon the trial of the case the judge made the following finding touching the mortgagor’s mental soundness: “That Maria T. Divine, on June 1, 1896, the time when she executed the promissory note and mortgage to the defendant, was over the age of eighty-five years; that she was then, and for several years prior thereto had been, physically very infirm; that at the time of the execution of the promissory note and mortgage her mental capacity had become greatly impaired, such impairment having commenced and continued several years prior to that time; that she was then a person of unsound mind,

but was not entirely without understanding,

nor had her incapacity been judicially determined; that at the time of her execution of the said promissory note and mortgage

she did not have sufficient mental capacity to understand the nature, purpose and effect of the transaction