DANFORTH, J.

In this case we can look to the complaint only for the facts on which the questions presented by the demurrer turn; and although both grounds stated by the defendant have been fully argued, we see no reason to differ from the conclusion reached by the General Term, that the complaint contains a cause of action.

In substance it is that Ira Riggs in his life-time was of unsound mind, and while in that condition transferred to the defendant by gift or contract several sums of money which it still holds, and refuses to return. Now upon that concession the learned counsel for the defendant has failed to raise a doubt that Ira Riggs if living would have a right to reclaim the money or, he being dead, that his representative may do so. Indeed the contrary can be maintained only by overthrowing the elementary principle of the common law, which renders a gift or contract invalid unless the mind goes with the act, and this, whether the actor is without mind, or of unsound mind, or of a mind not possessed of itself, as under duress. Of course if the plaintiff stood only on the fact of transfer, sanity at the time alleged would be presumed, and the plaintiff have the burden of showing the contrary. Now it is otherwise. The conceded fact takes the place of proof, and renders it unnecessary. It is, however, seriously argued that some further allegation is necessary, "that a person who is merely of unsound mind is not necessarily or even presumptively incapable of making such a disposition of his property." But in no other words could the pleader so well state the exact point to which the jury or the trial court must come before a decision is rendered in favor of the plaintiff. In Ex parte Barnsley (3 Atk. 168), to an inquisition "whether B. is a lunatic," the return was that "from weakness of mind he is incapable of governing himself, and his lands and tenements;" and upon motion to quash there was much debate as to its effect, whether sufficient or not. It was held bad, partly because the words in sense and meaning were not equivalent to the answer sought by the inquisition, and partly because the return was not easily traversable. The chancellor, saying after reference to investigation of the records that the proper return was " lunaticus or non compos mentis," or "insana mentis;" or since the proceedings have been in English, "of unsound mind," which he says "amounts to the same thing." Thus the fact to be found might be expressed in either of these ways. They all import a total deprivation of sense, and he adds, "courts of law understand what is meant by non compos or insane, as they are words of a determinate signification," and, as before stated, either expression is represented in English by the words used in this complaint. The allegation is, that Ira Riggs was of "unsound mind," not as a conclusion of law, but a fact founded upon other facts, some or all of which it may be necessary to prove, but only when issue is taken upon the one alleged. In the same sense the words are used in our statutes, as where in proceedings to acquire land in certain cases, papers are to be served upon one who is "an idiot or of unsound mind." and this, whether before or after inquisition found or guardian appointed (Laws of 1850, § 14, subd. 4, 6); or the chancellor is given the care and custody "of persons of unsound mind;" (2 R.S., tit. 2, chap. 5, p. 2, § 1.) So "persons of unsound mind" are incapable of holding or conveying land (1 R.S., 719, § 10), or submitting controversies to arbitrators, or devising real estate (2 R.S., 56, 57, § 1), or bequeathing personal estate (2 R.S., 60, § 21); and in the same way in other statutes. Therefore, both at common law, in the practice of the courts, and the language of the legislature, these words signify and describe persons of a certain condition which, whenever called in question, is to be ascertained like any other fact named or stated in pleading, the same as that a person is "an infant" or "a married woman." It is said, however, and I think justly, by the learned counsel for the defendant, that when made in good faith, for the benefit of the lunatic, without notice of incapacity, and so far performed that if rescinded the party executing cannot be placed in statu quo, the contract shall stand. Mutual Life Ins. Co. v. Hunt, 79 N Y, 541, cited by him, and many other cases, some of which are therein named, are to that effect.

But no one of these facts is to be found within the corners of the record on which this appeal stands. So far from it, the transaction was to the prejudice of Ira Riggs. In the ordinary affairs of life, the borrower pays interest and at the end of the term repays the principal. It is part of the debt. Here the defendant was to pay the interest for a period of time and thereafter retain both principal and interest as its own; in no event repay the principal. Riggs was to receive nothing which was not already his, nor was the defendant to part with any thing which belonged to it. A sane man might so contract if he saw fit, for he could dispose of his property where, when and how he pleased; but the defendant claims under one incapable of contracting. Therefore, if the facts above alluded to as those upon which a title acquired from such a source can stand, they must be established. They cannot be presumed to lie in the knowledge of the plaintiff, or even to exist; if they do, they must be alleged and proved by the defendant.

As to the other ground of demurrer, we think, as the case now appears, the controversy may be determined without the presence of other parties. The money in question was taken from the estate of the intestate, and if restored will again form part of it for distribution. If invalid at all, the transaction with the defendant was wholly so, and neither the widow nor the sister of the intestate could acquire rights under it; but if this was all, it might still be necessary to bring them before the court in order that upon such question they could be heard. But the question now is with the defendant; and by its concession the plaintiff is both able and willing to cancel and return to it the assurance or promise which it gave to the intestate on receiving his money, and also to surrender to it all claims which the beneficiaries or either of them might have under such promise or assurance. This is enough to release the defendant from all liability, and will operate as a complete discharge. There are many questions discussed by the learned counsel for the defendant which may be of great interest in some other stage of the case. They need not be considered now, for however answered they would not affect the conclusion which necessarily follows from the views above expressed.

The judgment appealed from should be reversed and judgment of Special Term affirmed, with leave, however, to the defendant, within twenty days hereafter, to withdraw its demurrer and answer over upon payment of costs in the Supreme Court and in the Court of Appeals.

All concur, except RAPALLO, J., absent.

Judgment accordingly.