The foremost question here is this: Where a spouse, the wife in the instant case, has suffered impairment of mind to such an extent that she does not have sufficient mental capacity to understand what she is engaged in doing, and the nature and'consequences of her act, may the other spouse, the husband here, maintain an action against her *58for divorce on the ground of two years’ separation, that is, under the provisions of G.S. 50-6 ? The trial judge held that he did not have such right, and, upon careful consideration of the question, this Court affirms.
In this connection, the General Assembly has seen fit to legislate specifically and specially in respect to the granting of absolute divorce in all cases where a husband and wife have lived separate and apart by reason of the incurable insanity of one of them, upon the petition of the same spouse. G.S. 50-5, subsection 6, as amended.
Therefore, in keeping with well established principle the remedy provided is exclusive. In Bar Asso. v. Strickland, 200 N.C. 630, 158 S.E. 110, in opinion by Brogden, J., this Court said: “The courts everywhere are in accord upon the proposition that if a valid statutory method of determining a disputed question has been established, such remedy so provided is exclusive and must be first resorted to and in the manner specified therein.” This principle has been quoted and applied in many decisions of this Court, among which are these: Maxwell, Comr., v. Hinsdale, 207 N.C. 37, 175 S.E. 847; Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24; Wilkinson v. Boomer, 217 N.C. 217, 7 S.E. 2d 491; Riddick v. Davis, 220 N.C. 120, 16 S.E. 2d 662; Worley v. Pipes, 229 N.C. 465, 50 S.E. 2d 504.
Hence, the jury having answered the fourth issue in the negative, and the provisions of G.S. 50-5 (6) not having been invoked, the trial court properly held that plaintiff cannot maintain an action upon the grounds alleged in his complaint.
Appellant, the plaintiff, also excepts to and assigns as error the ruling of the trial court in permitting defendant to amend her further answer to plead affirmatively the invalidity of the separation agreement of 20 October, 1950, by reason of her mental incompetency, as hereinabove set forth.
As to this, ordinarily, such plea is not permitted in an action for absolute divorce on the ground of two years’ separation. Jenkins v. Jenkins, 225 N.C. 681, 36 S.E. 2d 233. But here the pleadings present a different, and particular situation created by plaintiff.
Defendant, answering the complaint in respect to the alleged separation, sets up as a defense that she was mentally incompetent. Thereupon plaintiff, in reply thereto, alleges that the deed of separation of 20 October, 1950, was a full and complete settlement between plaintiff and defendant, and sets up the deed of separation “as a full and complete bar to the defendant’s right to recover on her cross-action in this cause.” And it was in answer thereto that defendant, by permission of the court, was permitted to amend her answer. Under these circumstances the fourth issue was proper, and plaintiff having initiated it, may not now complain.
*59However, tbe assignment of error based upon exception to tbe judgment is well taken. Carawan v. Clark, 219 N.C. 214, 13 S.E. 2d 237. Tbe principle applied to tbe factual situation there is applicable to case in band. Defendant bere occupies tbe position of plaintiff there. And tbe Court in opinion by Barnhill, J., now C. J., bad this to say:
“A contract entered into by a person who is mentally incompetent is voidable and not void. ... At tbe election of tbe incompetent and upon tbe return of tbe consideration and tbe restoration of tbe status quo, it will be annulled by a court of equity.
“Under certain conditions such a contract may be avoided by tbe incompetent even when be is unable to place the other party to tbe contract in statu quo, but tbe greater weight of authority supports tbe rule that where a contract with an insane person has been entered into in good faith,-without fraud or imposition, for a fair consideration, of which tbe incompetent has received tbe benefit, without notice of tbe infirmity, and before an adjudication of insanity, and has been executed in whole or in part, it will not be set aside unless tbe parties can be restored to their original position. . . .
“Thus, in an action to rescind a contract, as bere, for that tbe plaintiff was, at tbe time, mentally incompetent, tbe plaintiff must show insanity or mental incompetency at tbe time tbe contract was entered into. Upon such showing tbe contract will be annulled unless it is made to appear— tbe burden being on the defendant — that tbe defendant (1) was ignorant of tbe mental incapacity; (2) bad no notice thereof such as would put a reasonably prudent person upon inquiry; (3) paid a fair and full consideration; (4) took no unfair advantage of plaintiff; and (5) that tbe plaintiff has not restored and is not able to restore tbe consideration or to make adequate compensation therefor.”
Applying these principles to case in band: The verdict of tbe jury on tbe fourth issue establishes tbe mental ineompetency of defendant at tbe time tbe deed of separation of 20 October, 1950, was entered into. Upon such showing tbe deed of separation will be annulled unless plaintiff is able to carry tbe burden imposed upon him as indicated in tbe Carawan case, supra.
However, in tbe event it becomes necessary for tbe court to make an allowance for subsistence, tbe court should take into consideration tbe property received by defendant under tbe deed of separation and now in her possession and unused for her past subsistence.
Therefore, for these reasons, even though plaintiff, on tbe verdict rendered, is not entitled to a decree of divorce, tbe action will not be dismissed, but will be retained for further proceedings as to right and justice appertains and tbe law provides.
Error and remanded.