case thompson against leech see daily telegraph company v Mclaughlin a c a  person non compos be tenant for life with remainder to his first and other son  remainder over make a surrender to he in reversion before the birth of a son  with intent to destroy the contingent remainder and die leave issue a son the  surrender be void ab beginning and the son though he claim as remainderman and  not as heir may take advantage of it Com dig   Carth salk comens Mod Bac Abr  ld ray Carth salk Bac Abr burr this point have receive a legal determination  the same plaintiff bring another action of trespass and ejectment against the  same defendant and at a trial at the bar in easter term in the nine year of  William the three another special verdict be find upon which the case more at  large be thus Nicholas leech be seize in fee of the land in question make his  will in these word in the name of God Amen c I devise my manor of Bulkworth  whitebear and Vadacot in Devonshire and Cresby goat and Cresby grange in  Northallerton in Yorkshire to the heir male of my body beget and for want of  such issue male I devise the same to my brother Simon leech for life and after  his decease modern to the first son of the body of the say Simon leech my  brother lawful to be beget and to the heir male of the body of such first son  lawful to be beget modern er p with like remainder in tail male to the second  three four c son and for default of such issue to sir Simon leech my kinsman  be son and heir of Simon leech of Cadley in the county of Devon Esq decease  and to the heir male of his body lawful to be beget and for default of such  issue to the right heir of I the say Nicholas leech for ever they find that  Nicholas leech die without issue that Simon leech his brother and heir with  remainder over in contingency as aforesaid enter and afterward marry whether  the daughter of unton croak and that after the say marriage videlicet August  in the twentyfifth year of Charles the second he execute a deed purport a  surrender of the say land and tenement to sir Simon leech in manner follow to  all Christian people c I Simon leech of Elsefield in the county of oxon Esq  send greeting know the that I the say Simon leech for diverse good cause and  valuable consideration I hereunto move have grant surrender remised release  and for ever quit claim and confirm and by these present do grant surrender  remise release and for ever quit claim and confirm to sir Simon leech of  Cadley in the county of Devon knight of the bath and his heir and assign for  ever all and every the manor c to have and to bold the same to the say sir  Simon leech for ever they find that Simon leech brother of the testator be not  compos chin at the time of the seal and delivery of the say surrender that on  the that day of November in the twentyfifth year of Charles the second which  be two month after this surrender make the say Simon leech bad issue of his  body Charles leech who be his son and heir and that he after the death of his  father enter and make a lease to Thompson by virtue whereof he be possess  until the defendant sir Simon leech enter upon he c two question be make upon  this special verdict first whether this surrender by a person non compos chin  be void ab beginning and so can pass no estate to the surrendee for if so then  though the idiot himself be estopped by his own act yet that can be no bar to  he in the remainder because the act be void the estate in law still remain in  he second if it be not void in itself then whether it be voidable after the  death of the party by Charles leech he claim by virtue of a collateral  remainder and not as heir at law to the devisor modern as to the first point  it be argue that the case of lunatic and infant go hand in hand and that the  same reason govern both that the law be clear that a surrender make by a  infant be void therefore a surrender make by a person non compos chin be also  void the reason be because they know not how to govern themselves and as Fleta  Fleta lib c num a say always judicabi infra lifetime if be make any conveyance  of his land the law have provide a remedial writ even for himself to avoid his  own alienation Fitzherbert n b a the register b b his feoff be void and if  warranties be annex those be also void yearbook Henry pl c if he grant a rend  charge out of his land that be likewise void Bracton fol n and foe Britton cap  foe d and if the grantee shall distrain for this rend after the death of the  grantor his heir shall have a action of trespass against he Perkins pl e and  therefore by parity of reason this surrender must be void in Fitzherbert  Fitzherbert Abr grantee pl f there be a case to this purpose videlicet a  assize be bring against the tenant suppose that he have no right of entry  unless under a seize by who the brother of the demandant be seize the tenant  plead that the suppose seize be the father of the demandant who heir be then  be and that his say father make a feoff of the land to the tenant with  warranty and demand judgement c the demandant reply that his father at that  time be non compos chin and the tenant be compel to rejoin and take issue upon  the insanity which show that if he be non compos he can not have make such a  feoff so if he make a feoff in fee and afterward take back a estate for life  the non compos shall be remit to his modern er p ancient title fitzg Abr  remitter pl g which show likewise that such feoff be void for the remitter  suppose a former right it be incongruous to say that act do by person of no  discretion shall be good and valid in the law such be infant and lunatic and  it stand with great reason that what they do shall be void especial when it go  to the destruction of their estate Com dig enfant h therefore it be hold that  if a person non compos release his right it shall not bar the king in his  lifetime but be shall seize the land and if he die his heir may bring the writ  dumb non to be compos chin and may enter Fitzherbert n b I it be for this  reason that a release make by a infant executor be no bar because it work in  destruction of his interest the reason be the same where a person non compos  make a feoff for that likewise destroy his estate russel case   see also ass  pl king modern so likewise a infant can neither surrender a future interest by  his acceptance of a new lease nor make a absolute surrender of a term of which  he be possess for such a surrender by deed be void cro car l it be agree that  if a man non compos make a feoff by letter of attorney it be mere void   Carth  Leon m because it be not deliver to the feoff by the hand of the feoff but it  be say that if it be deliver by he in person then it be only voidable at any  time by action or entry   light a and of this opinion be sir Henry finch in  his discourse of the law Finchs law b who in the margin of his book quote  several authority in the yearbooks to justify this opinion and among the rest  he cite sir Anthony fitzherbert naturan narrow places f n b c who take notice  of the old authority seem to reject their reason who affirm that a person non  compos shall not avoid his own act when be recover his memory because be can  then tell what be do when he be in his former condition Leon ld ray d but  certain when he recover his judgement he be then of ability to consider what  be do during his insanity and to avoid such act by show that his indisposition  come by the visitation of God by which he be disable for a time to do any  reasonable thing whatsoever and this may be as well do as to plead duress from  man which the law allow to make compulsory act void my Lord coke in beverly  case   e take notice of the great reason of the civil law in case of this  nature which make all act do by idiot void without their curator concurrence  and that it be object as a defect in the commonlaw that tutor be not assign to  such person be answer that our law have give the custody both of they and  their land to the king which be direct contrary to his own opinion in his  second institute Inst a Mod f where paraphrase upon the four chapter of great  Charta which prohibit waste in the land of ware from thence he infer that at  that time the king have no prerogative to entitle he to the land of idiot for  if he have that Act will have as well provide against waste in their land as  in those of ware be far add that the guardianship of idiot do belong to the  lord accord to the course of the commonlaw be it how it will it be clear by  all the book that both by the common and civil law their act be void and my  Lord coke esteem it as a very unreasonable thing that they shall not be avoid  even during the life of the party himself but it be never yet deny that they  may be avoid after his death by his modern heir or executor and by parity of  reason the law will prevent stranger from be prejudice by such act there be a  objection that some act do by idiot be unavoidable as fine levy by they c it  be true such be not to be avoid not because they be good in themselves but the  reason be because they be upon record against which the law will not suffer  any averment to be make presume that the court and judge in Westminster hall  will not admit a idiot or infant to levy a fine this be therefore a void  surrender by a person non compos the estate be still in the surrender and so  the contingent remainder upon his death be well attach in Charles leech the  lessor of the plaintiff but suppose it be not void yet there will be scintilla  law leave in Simon leech to support the contingency and to prove this the case  of Lloyd v brookin vent keb a be rely on which be this videlicet Thomas  Bradshaw be tenant for life the remainder modern er p in tail to his first son  c the remainder to Paul for life the remainder to his first second and three  son in tail Thomas accept a fine from Paul who have then a son bear then he  make a feoff and afterward Paul have another son bear his old son die without  issue and it be adjudge that the contingent remainder to his second son be not  destroy by this feoff because it be preserve by the right of entry which his  elder brother have at the time it be make second if this surrender be only  voidable then whether Charles leech claim by a collateral title can avoid it  it be argue that he may for it will be absurd that he shall have a right to  the remainder and yet have no remedy to recover it my Lord coke in beverly  case   b tell we that there be four sort of privity first in blood as heir  second in representation as executor three in estate as donee in tail the  reversion or remainder in fee fourthly in tenure as lord by escheat he affirm  that the two first may show the disability of their ancestor and testator and  avoid their grant it be true in the three article he be of opinion that privy  in estate shall not avoid the act of their ancestor and he put the case of a  donee in tail make a feoff in fee within age and die without issue the donor  shall not enter because no right modern accrue to he by the death of the donee  there be only a privity of estate between they but this opinion be deny to be  law by justice dodderidge in his argument of the come between Jackson v darcy  palm c who say that the donor may enter because otherwise he will be without  remedy for he can not maintain a formedon because the feoff make by the infant  be no discontinuance beside it be not possible there shall be any privity in  blood between the donee in tail and the reversioner in fee so that article  must be intend where they be stranger in blood and privy in estate which do  not at all concern the case in question because William leech be privy in  blood to his father who make the surrender and my Lord coke tell we in the  first article of his distinction that such a privy may avoid the act of his  ancestor it may be object that this distinction be not then the judgement of  the court for it be not material to the point in issue which be no more than  thus videlicet snow give bind to Beverly and exhibit his bill in the court of  request to be relieve against it because at the time of the seal and delivery  thereof he be non compos chin but the like distinction be make in Whittinghams  case   d many year afterward which be thus videlicet Whittingham be seize of  land hold of the queen in soccage devise the same to prudence his bastard  child and her heir she during her infancy make a feoff thereof to another and  die in her nonage without issue the question then be whether that feoff shall  prevent the queen of the escheat and adjudge it shall not in which case it be  hold that privy in blood inheritable shall take advantage of the disability of  their ancestor as if a infant who be seize in fee make a feoff and afterward  die his heir may enter and avoid it the law be the same in the case of one non  compos chin as in that of a infant as to the avoid of the act of their  ancestor so that Mr leech be privy in blood accord to my Lord coke opinion in  those case shall avoid the act of his father he be non compos at the execute  of this surrender if it shall be object that this part of the distinction  ought to be take restrictively and must be tie up to such a heir at law who  take a immediate possession by descent from his ancestor the answer be that if  this surrender be avoid Mr leech will take by immediate descent from his  father for though nothing but a reversion in fee descend to he yet he be a  complete heir modern but after all this distinction make by my Lord coke be  find upon no manner of authority it be only his extrajudicial opinion for  there be no reason to be give why privy in estate shall not avoid such act do  by their ancestor as well as privy in blood because the incapacity of the  grantor go to both those who argue on the other side hold that the act of  infant and person non compos be not void in themselves but only voidable it be  true some deed make by a infant be void not mere because execute by he for  some be good and those only be void which be make to his prejudice cro car a  such also be void which modern er p give authority to a three person to do a  act Perk sect march b as if a infant enter into a bind and give it to a  stranger to deliver to the obligee when he shall attain his full age this be  void because the person derive his authority from a infant who by reason of  his nonage can not give such a power but if the infant himself have deliver  the bind to the obligee it have be only voidable Litt sect c the father of the  demandant be art infant when he sell his estate his son bring the writ dumb to  be infra lifetime against the alienee and it be hold good yearbook Edward pl d  which will not have be allow if the grant have be void all the old authority  prove that the act of infant and idiot be not void but voidable brook Abr  lease more roll Abr Bac Abr e if a infant be bind in at obligation it be not  void for he may agree to it when of age be can plead non be factum and he may  refuse to plead his infancy cro Elizabeth Inst f if he be entitle to a term  for year and make a surrender by the acceptance of a new lease it be good if  it be for his advantage either by the lessen of the rend or the increase of  the term but if he have no benefit by it it be voidable only cro Elizabeth cro  car a so he may purchase land because the law intend it for his benefit and be  can receive no damage by such a purchase for he may either perfect or avoid it  at his full age which show that such act be not void ab beginning but only  voidable as the case shall require fitzg Peer wms Mod Bac Abr lease b the  statute of Henry c enact that sheriff shall take no bind upon a arrest but for  the appearance of the party and to themselves only and that a bind otherwise  take multicolored duty shall be void that be not in itself but by plead the  statute for it be not to be avoid by plead non be factum modern so upon the  statute of addition the Henry c see   a c where a man be outlaw without the  addition of his condition or place of abode in the original writ such outlawry  shall be void not of itself but it may be avoid by a writ of error in like  manner there be many authority to prove that the act of a person non compos be  not void but voidable so be the first resolution in beverly case   roll Abr d  that a deed or feoff make by he be to be avoid by any other person but not by  himself thus stand the law in the time of Edward the three for in a assize  assize pl e the defendant plead that the the plaintiff have release to he by  deed who reply that at the time of make the deed he be non compos the court of  common plea seem then to be of opinion that the replication be not good which  show that the deed in itself be not void it be true the assize be then adjourn  because that opinion be direct against the register which be that the writ of  dumb non to be compos may be bring by the person himself notwithstanding his  own alienation but this have since be deny to be law for in debt upon bind the  defendant plead that he be non compos and upon a demurrer the plea be overrule  Stroud v marshal cro Elizabeth see also Fitzherbert n b and Mr hargrave note    light a Bl Com j and of this opinion be sir William Herle chief justice of the  common plea in the reign of Edward the three see the yearbook Edward pl g  which be long before the book of assize so the law continue till the reign of  Henry the six see the yearbook Henry pl h videlicet that the person himself  can not avoid his own feoff either by entry or action the writ de idiota  inquirendo and dumb non to be compos import the same thing videlicet that act  do by they be not void for the first recite that the idiot to make strange and  the other that the lunatic to send different ways land to send different ways  be there intend where the estate be convey by livery or for life and to make  strange be a conveyance by feoff Edward pl stand de tribe which voted first  king note to the former edition I now if their act have be void ab beginning  then they can be modern er p suppose either to alien or lease their land which  show that such act be only voidable and as a far argument to enforce this the  statute de prerogative king be mention which give the custody of the idiot  land to the king during their life provide that afterward it be give to their  right heir ita quod not at all per the same fool aliene now to what purpose be  these word add if such a alienation be void in itself beside the case of idiot  mention on the other side and lunatic be not parallel for a idiot have a  different incapacity from one non compos it be perpetual in a idiot and for  that reason the law give the king a interest in he modern but a person non  compos may recover his sense he may purchase land may grant a rend charge out  of his estate and shall not plead his insanity to defeat his own act   light b  Fitzherbert Abr issue a if therefore this surrender be not void at the time of  the execution thereof but voidable only during the life of the surrender by  office find then the question can proper be whether the lessor of the  plaintiff shall avoid it for that will be to revest the estate in somebody but  the furrender be good and the estate for life be utter determine so that  nothing be leave to support the contingent remainder those be also destroy and  to prove this chudleighs case   SC Poph b be rely on which be sir r c be seize  in fee of the manor of Hescot in Devon and have issue Christopher and three  other son make a feoff to the use of himself and his heir on the body of mary  then the wife of Mr Carew to be begotton and for default of such issue then to  the use of his last will c for ten year and after the expiration of that term  then to his feoff and their heir during the life of Christopher remainder to  the issue male of Christopher in tail with like remainder to his other son  remainder to his own right heir he die without issue by mrs Carew but before  Christopher have any son bear the say feoff make a feoff of the land in fee  without any consideration afterward Christopher have issue two son now the use  limit by the feoff of sir r c be only contingent to the son of Christopher and  they not be bear when the second feoff be make to their father the question  now be whether they shall be destroy by that feoff before the son have a be in  nature or whether they shall arise out of the estate of the feoff after their  birth and it be adjudge in the exchequer Chamber that the last feoff have  divest all the precedent estate and likewise the use while they be contingent  and before they have a existence and that if the estate for life which  Christopher bad in those land have be determine by his death before the birth  of any son the future remainder have be void because it do not vest while the  particular estate have a be or eastern earnestness that it determine so in  this case Mr leech can have any future right of entry for he be not bear when  the surrender be make so that the contingency be for ever go suppose a feoff  in fee to the use of himself and his wife and to the heir of the survivor  modern the husband afterward make another feoff of the same land and die and  the wife enter the fee shall not vest in her by this entry for she have no  right the husband have destroy the contingent use by the last feoff so that it  can not accrue to her at the time of his death Biggot v smith cro car see ld  ray Fearn con Rem edit Bac Abr Purefoy v Roger sand lev keb see Mod show c p  Bac Abr a nay though the particular estate in some case may revive yet if the  contingency be once destroy it shall never arise again as where the testator  be seize in fee of house devise the inheritance thereof to such son his wife  shall have after her life if she baptise he by his Christian and surname and  if such son die before he attain the age of twentyone year then to the right  heir of the devisor he die without issue the widow marry again then the  brother and heir of the testator before the birth of any son convey the house  thus videlicet to the husband and wife and to their heir and levy a fine to  those use afterward she bad a son baptise by the testator Christian and  surname then the husband and wife sell the house to one Weston and his heir  and levy a fine to those use it be adjudge Purefoy v Roger sand lev keb see  Mod show c p Bac Abr b that by the conveyance of the reversion by the brother  and heir of modern er p the testator to the husband and wife before the birth  of the son her estate for life be merge and though by reason of her coverture  she may waive the jointtenancy and reassume the estate for life yet that be  once merge the contingent remainder be all destroy Wigg v villiers roll Abr  but see ld ray burr c curian the grant of infant and of person non compos be  parallel both in law and reason and there be express authority that a  surrender make by a infant be void see Ann c and Geo c d therefore this  surrender by a person non compos be likewise void Lloyd v Gregory cro car  Jones Bac Abr e if a infant grant a rend charge out of his estate it be not  voidable but Self facto void for if the grantee shall distrain for the rend  the infant may have a action of trespass against he in the case of Hudson v  Jones Trinity term Ann b r it be say to have be hold that if a infant grant a  rend charge out of his land it be not absolute void but only voidable by he  when he come of age for that if the grantee shall then distrain for the rend  though the other may bring a action of trespass yet he can plead non to go  away for the deed be only voidable by the show of his infancy and not void  because it be deliver with his own hand Bac Abr and see   Inst cro Elizabeth  more pl Poph f in all the case which have be cite where it be hold that the  deed of infant be not void but voidable the meaning be that non be factum can  be plead because they have the form though not the operation of deed and  therefore be not void upon that account without show some special matter to  make they of no efficacy modern therefore if a infant make a letter of  attorney though it be void in itself yet it shall not be avoid by plead non be  factum but by show his infancy some have endeavour to distinguish between a  deed which give only authority to do a thing and such which convey a interest  by the delivery of the deed itself that the first be void and the other  voidable but the reason be the same to make they both void only where a feoff  be make by a infant it be voidable because of the solemnity of the conveyance  now if Simon leech have make a feoff in fee there have still remain in he such  a right which will have support this remainder in contingency say qure see  palm Rep Bl Rep burr a this surrender be therefore void and all person may  take advantage of it afterward a writ of error be bring to reverse this  judgement in the house of lord but it be affirm