Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-11-23

TIE MORNING APPEAL.
II. R. MIGHELS. LESSEE
FRInAY------NO %
SUPREME COURT DECISION.
In the Supreme Court Of the State OF
Nevada. (No. 1861
Respondent.
Henri Kind ct al,
Appellants.
Appeal from the District Court of the
State Of Nevada, in and for Eu-
rcka County. Hon. A. L. Fitz-
gerald, Judge.
n. Soderberg and
A. Ch.,rtz,
For Respondent.
Thomas Wren.
For Appellants.
ON PETITION FOR REHKARING
By Massey,J.
The respondent in her petition for re-
heariEs. argues in effect, that a convey
il v &c
void and not merely vOidable, and that
when the incompetency of the grantor is
shown nothing remains for the court to
do except to decree the nullity Of the
conveyance without regard to the equi
ties OF the other parties thereto.
RESPONDENTS complaint was not drawn,
the case was not tried and was not pre-
scented 10 this court upon this theory of
the la v. 1t is not necessary to repeat
again he issues made and the evidence
in support thereof as to the ownership of
the property, consideration for the con-
veyancs, the undue influence alleged to
have been exerted, aud the fraud Prac-
ticed in this action, as those matters were
fully stated in the origina. opinion.
nearly all OF the American states that a
conveyance Of person non compos
mentis who has not been placed under
guardianship is not void but merely
voidable. An exhaustive list of cases so
holding will be found in the note to
Riley V. Carter, 10 l.. K. A. 49, An eN-
animation of these cases also shows that
bo 10 Of no Ia
and we have been unable to find any pro-
vision of our statutes which in any man
ner medities or abrogates this doctrine.
AS to the further claim that where the
grantor is shown to be non compos
mentis at the time of the execution Of
the conveyance, but not under guardian
ship. keeping in mind the condition of
the parties hereto, the title of the prop
erty, the consideration for the convey
ance, the undue influence and fraud al
legged to have been practiced, as shown
by the record. and without expressing
any opinion as to what equities of the ap
a,ellannts should be protected and PIE
served by the record, we are of the opin-
ion that it is the duty of courts exercising
equitable jurisdicti IN. IN actions OF inns
character, to grant relief upon equl'aole
terms and conditions only.
"This is an action in equity, in which
the extraordinary, and, to q certain eA-
tent. discretionary jurisdiction Of the
court is invoked to set aside a deed.
court OF equity, when its jurisdiction is
lnyck ed to set aside deeds and contracts
of person upon the ground of insanity
acts upon equitable principles. 1t is b.
no means a matter of course for cour
of equity to set aside and declare vol
the act of a lunatic executed during hi
lunacy. 1t does so in no case, eXcep
upon equitable '"ms-upOn the unlNers
al maxim OF that court that he who seek
equity must do equity. As, for instance
where conveyances have been obtalne
from lunatic at great undervaiue Wit
reason to believe actual fraud on the pa
of the grantee: yet the amount actuall
paid must be refunded as a condition
relief = The court of chancery
says Nr Shelford, will not as matte
Of ours, interfere 10 set aside contrac
EN-, i into and completed by a lunat
even though they be void at law, but tt
interference of the court will depel
very much upon the circumstances
each particular case; and where it is il
possible to exercise the jurisdiction
favor of the lunatic so as TO do justice
the other party the court will leave /
luna.ic to his remedy, if any, at law. -
Garfield V. Fairbanks, So Barb, 49,
This doctrine is also supported by t
following decisions which we do l
deem necessary to review.
Brown V. Miles, 81 Hun. 1873: Crib
v. Maxwell, 81 Kan. 5; Yauger
Skinner, IA \. J. F. $50; Riggan
Green, so y. c. 237; Pearson V c,
Il Tex. Dag; Copenrath V. kienby,
Ind. Is: Fay V. Burditt 81 Ind. 43:
We have refrained from discussing
in any manner expressing an opini