The plaintiff assigns as error the refusal of the court to submit two issues as to the ratification of the alleged lease and option by (1) the lessor, and (2) after his death by the defendant heirs, as alleged in the reply.
We find no error in the trial below affecting the issues submitted, nor do we think there is any evidence on the record to warrant the submission of an issue as to the ratification of the contract by the lessor. His want of mental capacity to enter into a legal and binding contract on 27 April, 1940, appears to have continued until his death. But we do *55think there is some evidence tending to show ratification of -the contract on the part of at least some of the defendants.
An agreement entered into by a person who is mentally incompetent, but who has not been formally so adjudicated, is voidable and not void. Carawan v. Clark, 219 N. C., 214, 13 S. E. (2d), 237; Wadford v. Gillette, 193 N. C., 413, 137 S. E., 314; Beeson v. Smith, 149 N. C., 142, 62 S. E., 888; Ellington v. Ellington, 103 N. C., 54, 9 S. E., 208; Riggan v. Green, 80 N. C., 237; 28 Am. Jur., 714; 17 C. J. S., 484.
Four of the six defendants testified that in their opinion their father, S. J. McLaurin, did not have sufficient mental capacity, on 27 April, 1940, to enter into a valid contract. S. J. McLaurin died 16 February, 1942. The alleged lease and option purported to be in effect until 1 May, 1945. It is admitted that the rent was paid in accordance with the terms of the alleged agreement. The evidence tends to show that Floyd A. McLaurin, one of the defendants, instructed the plaintiff to pay the rent which accrued under the terms of the agreement, after 16 February, 1942, to him as administrator of the estate of S. J. McLaurin.
If the defendants knew that S. J. McLaurin was not mentally competent to enter into a contract on 27 April, 1940, but also knew that notwithstanding his mental condition such a contract was executed, they had the right to disaffirm the agreement immediately upon his death. Cameron v. Cameron, 212 N. C., 674, 194 S. E., 102; Warren v. Federal Land Bank, 157 Ga., 464, 122 S. E., 40. And, if the defendants knew the terms of the agreement, and that it contained an option for the purchase and sale of the property, and notwithstanding that knowledge, they elected to accept the rents according to the terms of the lease until its expiration, such conduct would constitute a ratification of the contract.
Where an incompetent person purports to enter into a contract, after his death his heirs may ratify the agreement or they may disaffirm it. Williston on Contracts, Revised Edition, sec. 253, p. 744; Meadows v. Thomas, 187 Ind., 216, 118 N. E., 811; Downham v. Holloway, 158 Ind., 626, 64 N. E., 82; Atkinson v. McCulloh, 149 Md., 662, 132 A., 148, and in Hendricks v. Stark, 99 Fla., 277, 126 So., 293, it is said: “One of the most familiar applications of the rule relating to the acceptance of benefits arises in the case of contracts. It has been repeatedly held that a person by the acceptance of benefits may be estopped from questioning the validity and effect of a contract; and, where one has an election to ratify or disaffirm a conveyance, he can either claim under or against it, but he cannot do both, and, having adopted one course with knowledge of the facts, he cannot afterwards pursue the other.” Brown v. Osteen, 197 N. C., 305, 148 S. E., 434; Sugg v. Credit Corp., 196 N. C., 97, 144 S. E., 554.
*56Whether or not the defendants or any one or more of them ratified the-contract under consideration, is a question for the jury.
The judgment below is stricken out, and the cause remanded for a partial new trial on a proper issue as to whether or not the defendants, or any one or more of them, ratified the alleged contract.
Partial new trial.