made good by a subsequent Agreement, 'twas not totally void, and if not totally void, 'tis with the Plaintiff in Error: The Law, besides, is very tender in case of Freeholds, to make Conveyances void by bare Averments, and this would be of dangerous Consequence, if when there was no Inquisition or Commission of Lunacy during Life, that thirty or forty Years after a Conveyance it should be in the Power of a Stranger to say, that the Vendor was Mad. "Twill make Purchasors unsafe: Acts solemnly done ought to have a solemn Avoidance. The 1 H. 5. cap. 5. makes a Fine to be void; 'tis void as a Bar, but yet it makes a Discontinuance, and must be solemnly avoided. Lincoln College Case, 3 Rep. Stroud and Marshal, 3 Cro. 398. Dett sur Oblig' The Defendant pleads that at the Time he was of none sane Memory, and on Demurrer adjudged no Plea; and the Opinion of Fitzh. held not to be Law. And 3 Cro. 622. 50 Assis. 2. Fitzh. Issue, 53. a Release by a Non compos, which is much the same with a Surrender, only one works Upwards, and the other Downwards; and after Recovery the Party agrees to it, the same is binding, 39 H. 6. 42. and 49 E. 3. 13. Then was mentioned the Provision of the Law in these Cases, besides the Care of the Court of Chancery, which protects the weak and unwary by Rules of Equity. There's a Writ de Ideota Inquirend', and the express Direction of the Writ is to inquire quas terras alienavit, which shews that 'tis not void. The Statute of Prærogativa Regis, is express Authority for it; the Reason given is, that such Persons Lands should not be aliened to their Hurt, or the King's. It must be agreed, that before Office found the King cannot avoid the Alienation, even of an Ideot; and then after Office, the Practise is to Issue a Scire facias to him in Possession, or to the Alienee; and so is Fitzh. tit. Scire facias, pl. 2. 106. All these Methods prescribed by the Law would be useless, if the Acts themselves were void: Then 'tis as certain, that the Office must be found during the Party's Life, and during the Insanity, and not afterwards. If there had been an Office, 'twould only avoid it with a Prospect, as it would be in case of an Heir after Death: Even after an Office, the King cannot have the Profits from the Time of the Alienation: Which [153] shews it not void from the Beginning. If a Suit be against an Ideot after Inquisition, the Ideot cannot plead it, but the King shall send a Supersedeas to the Judges, suggesting the Inquisition; so that even then the Party himself cannot avoid it.
As to the other way of avoiding it by the Heir, it must be by Writ or Entry; and till Entry or Writ the Act remains good. But here's no Contest with the Party himself, or with his Heirs, but with a Remainder Man. This Act of Surrender was no tortious Act, it wrought no Discontinuance: There was no Trust in him to preserve the Contingent Remainder: A Feoffment with Livery is allowed not to be void, and yet that may do a Wrong by Discontinuance, &c. As to the Pretence that a Warrant of Attorney to make Livery is void, that doth not reach this Case; for here's an Act done by himself, which would have passed the Estate as by and from himself, if he had been of sound Mind.
Then 'twas desired that the other Side would shew any such Case as this: Whereas Multitudes of Gifts, Grants, Releases, Bonds and other Specialties, sealed and delivered by the Party himself, are allowed to be good. And the same Reason holds for a Surrender made in Person; and there's no Difference between a Livery made in Person and a Surrender; the Act being Personal, and not by another under his Authority, makes the Livery good; and so it ought to be here. 18 E. 4. 2. Perkins, sect. 139. And 'tis observable in 39 H. 6. 42. per Prisot, upon the Inquisition 'tis reseised and revested into the Interest of the Ideot, and consequently of the King: And if revested, 'twas once out of him. Now here's no Prejudice to the Man himself by this Opinion; he is taken Care of, and his Acts avoided by the King on his Behalf; and his Heirs may avoid them: But that Strangers should take Notice of them as void, was denied; and therefore prayed that the Judgment should be reversed.
Argument for the Defendant in Error. Judgment affirmed.—On the other Side it was argued with the Judgment, That this never was a Surrender; that 'twas against Sense and Reason, to allow the Acts of a Madman, a Person distracted, to be valid to any Purpose. That in Case of Livery it had been allowed to be only voidable, by Reason of the Solemnity and Notoriety of the Thing But in Case of a Deed, or a Thing passing only by Deed, 'twas otherwise. And Bracton, Britton, Fleta, and the Register were cited, where 'tis declared who
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