Action of scire facias sur le mortgage by Virginia I. Poole against Gerald Hudson and his wife. The plaintiff moved for a summary judgment. The Superior Court, Carey, J., held that the mere averment of mortgagor's mental incapacity at time of execution of mortgage was not a complete defense to foreclosure of the mortgage.
[46 Del. 340] Motion of plaintiff for summary judgment in an action of scire facias sur le mortgage. The mortgage, dated April 27, 1948, was security for the payment of $4,000 with interest at five percent per annum. An affidavit of demand was filed averring default and claiming a balance due of $3,322.22 plus interest from December 7, 1949 and counsel fees. A copy of the mortgage is attached to the affidavit of demand. After the description of the property therein appear these words: ‘ Being the same lands and premises which Ralph B. Poole and Virginia I. Poole, his wife, by indenture bearing even date herewith, but previously executed, as yet unrecorded but intended so to be herewith, did grant and convey unto J. Gerald Hudson and Martha R. Hudson, his wife, in fee simple, as tenants by the entireties'.
The defendant wife filed an affidavit of defense in accordance with Rule 12(a) setting forth the following defense: ‘ That she verily believes that she has a complete defense to said action in that at the time she executed the purported bond and mortgage she was in a hospital under the care of a Doctor and under the influence of opiates and did not know the nature and character of the papers she signed’ .
[46 Del. 341] Plaintiff has moved for summary judgment against her. This motion was heard on the complaint, exhibit and the affidavits of demand and defense.
August F. Walz (of Hastings, Stockley & Walz), Wilmington, for plaintiff.
Henry A. Wise, Jr., Wilmington, for defendant Martha R. Hudson.
No appearance for defendant J. Gerald Hudson.
CAREY, J., sitting.
The question for decision is whether the defendant's affidavit ‘ shows on its face a
condition of facts which, if true, would constitute a legal defense’ to plaintiff's scire facias action. 1 Woolley Delaware Practice 197. More specifically, is it a complete defense in this case to show that Mrs. Hudson was ‘ under the influence of opiates and did not know the nature and character of the papers she signed’ ?
The affidavit suggests, but does not expressly aver, mental incapacity at the time of the transaction. It was held in Delaware, at a very early date, that drunkenness, even though self induced, may furnish a ground for avoiding a contract. Dulany v. Greene, 4 Harr. 285. Unquestionably, mental incapacity resulting from the use of drugs would likewise justify the same result. But, in every instance of mental impairment, regardless of its cause, if no circumstances of unfairness, fraud, duress or undue influence appear, the reasoning powers must be so impaired as to render the person actually incapable of comprehending and acting rationally in the particular transaction. Warwick v. Addicks, 5 W.W.Harr. 43, 157 A. 205; 17 C.J.S., Contracts, § 133, page 479. For example, merely being under the influence of intoxicating liquor is not enough to avoid a contract. 17 C.J.S., Contracts, § 133, page 483. The same is true of drugs. Shotwell v. First National Bank, 127 Neb. 676, 256 N.W. 508. Incapacity does not necessarily result from ‘ being under the influence’ .
In this case, the affiant does not aver that her mind was influenced by the drug to the extent that she was incapable of understanding the transaction. The plaintiff should not be deprived of his foreclosure remedy simply because she did not know the nature of the papers she signed if her lack of knowledge was not due to a mental inability to comprehend their true character. [46 Del. 342] We are not here concerned with a situation where inequitable conduct on the part of the plaintiff or any one else influenced the action of a person under some temporary mental impairment. No such case is made out and those authorities which deal with that type of situation have no present materiality. Sutcliffe v. Heatley, 232 Mass. 231, 122 N.E. 317, which has been cited by defendant, is in that category.
Assuming, however, that the affiant actually intended her words to mean that she could not understand the papers she signed, the result would be the same. The transaction would not be void, but voidable, at most. Industrial Trust Co. v. Miller, 5 W.W.Harr. 554, 170 A. 923; Poole v. Newark Trust Co., 1 Terry 163, 8 A.2d 10.Where a contract has been entered into with a person mentally incompetent, in good faith, without fraud or imposition, for a fair consideration, without notice of the incompetency, and has been executed in whole or in part, the contract will not be set aside unless the parties can be restored to their original position. Poole v. Newark Trust Co., supra. This principle, though of equitable origin, is today applied in most common law Courts. I Williston on Contracts (Rev.Ed.) 746; Pichel v. Fair Store Co.,29 Ohio App. 322, 163 N.E. 511. It would ...