
    VAN HORN v. HERNDON.
    1. Vendor and Purchaser' — Insane Persons — Voidable Contract.
    Contract to sell land executed by one later judicially declared insane was at most voidable.
    2. Same — Cancellation' of Instruments — Fraud—Eatification— Tender.
    Suit by heirs of vendor to 'set aside land contract, voidable on ground of fraud, was properly dismissed, where plaintiffs were represented in probate court by able counsel, made no claim of fraud until more than five years after death of vendor, and in meantime had ratified contract by accepting from administrator of vendor’s estate their share of payments received on contract, and made no tender of it back.
    Appeal from Wayne; Carr (Leland W.), J., presiding.
    Submitted January 23, 1931.
    (Docket No. 135, Calendar No. 35,441.)
    Decided February 27, 1931.
    Bill by Harold C. Van Horn and others against Bobert Herndon and another to cancel a land contract. Decree for defendants. Plaintiffs appeal.
    Affirmed.
    
      James Gibbons (Andrew G. Stevenson, of counsel), for plaintiffs.
    
      Retan £ Zelemik, for defendant Herndon.
   Potteb, J.

Elizabeth Van Horn in her lifetime owned 20 acres of land in Brownstown township, Wayne county, Michigan, which she sold in September, 1922, to defendant Bobert Herndon on land contract. Later both Elizabeth Van Horn and her daughter, defendant Estelle Van Horn, were judicially declared insane and confined to the Michigan State Hospital at Pontiac. After the death of Elizabeth Van Horn, an administrator of her estate, was appointed by. the probate court of Washtenaw county. The title to the real estate of the deceased passed to and vested in plaintiffs and defendant Estelle Van Horn. The administrator was not a proper party plaintiff to attempt to set aside the land contract made by Elizabeth Van Horn in her lifetime; the plaintiffs and defendant Estelle Van Horn were. The contract of Elizabeth Van Horn was at most voidable. Plaintiffs were represented in the probate court of Washtenaw county in the administration of the estate of Elizabeth Van Horn by able counsel. If plaintiffs claimed fraud in the sale of the real estate by the deceased, it was their duty to act promptly. Plaintiffs did nothing. The administrator collected the amount due on the contract for the sale of the land and distributed the amount collected, less the expenses of administration, to the parties entitled thereto, the plaintiffs receiving upwards of $2,000 on the distribution of the estate of Elizabeth Van Horn.

More than five years elapsed after the death of Elizabeth Van Horn before the filing of the bill of complaint in this case. No tender back of the proceeds of the contract received from the administrator of Elizabeth Van Horn’s estate by plaintiffs is made. Plaintiffs seek to keep the money paid them by the administrator and set aside the contract under which defendant paid it to him. Conceding everything claimed by plaintiffs, they have ratified the contract, taken their respective shares of the money paid by defendant Herndon under it to tbe administrator from him, and make no tender of it back. They have ratified the contract now sought to be set aside. The trial court arrived at a correct conclusion. Decree affirmed, with costs.

Butzel, C. J., and Wiest, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred.  