LOTT, Ch. C.

Both parties claimed under Sylvester Sweet, their father (who died in January, 1866), as the common source of title, the plaintiff under a devise to her in his will, dated in September, 1849, and the defendant as tenant of Henry Jacobie, a son-in-law of said Sweet, under a deed alleged to have been executed to him on the 20th day of April, 1864.

The execution of the will containing such a devise was proved, and a deed purporting to have been so executed was also introduced in evidence. There was no question made as to the execution or validity of the will, but the deed was impeached on the ground of the want of sufficient mental capacity in Sweet to execute it. Considerable testimony on that question was introduced on each side, and the judge at the close of the evidence charged the jury, after stating the nature of the relative claims of the parties to the premises, that the said deed, if sustained, was sufficient to convey the estate; that the plaintiff insisted that the deed was executed by the grantor when he had not sufficient mental capacity to enable him to make a deed, and the sole question for them to determine was whether the grantor, Sylvester Sweet, had sufficient mental capacity to know what he was about at the time he executed the deed, and if they found that Mr. Sweet, on the 20th day of April, 1864, was not devoid of reason and had sufficient understanding to enable him to know what he was about when signing the deed, then the deed was not void. He charged, further, that the deed might be voidable by reason of his weakness of intellect, his imbecility, although it might not be entirely void; and if they found from the facts in the case that his mind was so weak that he did not know or appreciate what he was doing, that he did the act mechanically, without appreciating its force and effect, or that his mind did not assent either to the execution or delivery of the deed, then that they might find that the deed was a nullity; adding, that it was necessary that the mind of the grantor should assent to the act, — not only that his hand should sign and he in some manner should deliver the deed, but that his mind should assent to it. He then, after referring to a fact as in proof before them, said in conclusion, that, taking this fact into consideration, they would determine the single question submitted to them. "To which charge (the case states), as here given, the defendant then and there duly excepted," and thereupon the jury returned a verdict for the plaintiff.

That exception is clearly not well taken. The charge, as a whole, was as favorable to the defendant as he could properly claim; but, if it were otherwise, he had no valid ground of objection to that portion of it which instructed the jury that if they found that Mr. Sweet, on the 20th day of April, 1864, was not devoid of reason and had sufficient understanding to enable him to know what he was about when signing the deed, then the deed was not void; and most certainly not to that part thereof which declared that the deed, if sustained, was sufficient to convey the estate. The exception, being general to the whole charge, was, therefore, in any aspect or view of it, unavailable as a ground for the reversal of the judgment, and the verdict of the jury is conclusive on the question of fact submitted to them, unless illegal evidence bearing thereon was erroneously admitted against the exception of the defendant.

It then remains to be considered whether either of the exceptions relative to the admission of evidence or to the motion for a nonsuit (involving substantially the same matter), relied on by the appellant on this appeal, are well taken.

The first is, that "the judge erred in admitting evidence of the alleged incompetency of Sylvester Sweet, the grantor, in the deed to Jacobie."

The case states that the evidence objected to tended to show, and which the plaintiff insisted proved, that the said Sylvester Sweet "had been for some time prior to the execution of said deed failing in his mental faculties, and was in consequence thereof at the time of executing said deed thereby rendered wholly, absolutely and completely incompetent to transact business or manage his affairs and to execute said deed."

The ground of the objection so taken was that the deed was voidable merely, and that the remedy of the plaintiff, if any, based on the alleged incompetency of the grantor to execute the deed, in the absence of fraud and before office found, was by an equitable action to set aside the deed. The judge properly overruled the objection, deciding and holding that the evidence was unavailing unless it proved that "Sweet was at the time of the alleged execution of the instrument totally and positively incompetent, which is expressed by the technical and significant phrase non compos mentis; that for such purpose only the evidence would go to the jury with proper judicial instruction corresponding with the above opinion, and for that purpose it was admissible; and that it was competent for the plaintiff to sustain the action by showing that Sylvester Sweet, at the time of executing the deed to Jacobie, was of unsound mind, although no fraud was practiced upon him in order to induce him to execute the deed, and although the incompetency of the said Sylvester Sweet to transact business or execute a conveyance of his property had not been legally or judicially ascertained or declared at the time of or prior to the execution of said deed." In short, the object and tendency of the proof offered was to show that Sweet had not sufficient mind or mental capacity, or, in other words, as expressed by the learned judge, was "totally and positively incompetent" to execute a valid deed at the time it is claimed to have been executed. If that fact was satisfactorily established, the instrument never had any existence as a deed, and was legally ineffectual and inoperative to pass a title to the premises. It was not merely voidable, but absolutely void. It was, in fact, not his deed, never having had any legal existence or vitality. There was, consequently, nothing to be set aside by the interposition of a court of equity or by recourse to an equitable action; but the fact of its absolute nullity was available to overcome and avoid the defence set up and interposed under it to defeat the plaintiff's claim and title.

I deem it proper, however, to add that I do not wish to be understood or to intimate that I have any doubt that it would have been competent for the plaintiff to have shown that the deed was voidable, if that had been necessary, to defeat the defendant's claim. (See Phillips v. Gorham, 17 N.Y., 270; Lattin v. McCarty, 41 id., 107.)

Another exception taken to the admission of evidence arises on the introduction of a writ of de lunatico inquirendo, issued by the County Court of Saratoga county, for an inquiry into the question of the lunacy of the said Sylvester, on the twenty-eighth day of October, 1865, and the commission taken under it on the fifteenth day of November, in the same year, by which it was found, among other matters, that the said Sylvester Sweet was, at the time it was taken, a lunatic and of unsound mind, and did not enjoy lucid intervals, so that he was mentally incapable of the government of himself or the management of his lands, tenements, goods and chattels, and that he had been in the same state of lunacy ever since the latter part of the year 1862, and which finding was subsequently, on the eighteenth day of December, 1865, confirmed by the said County Court.

The following objections were made to their admissibility:

1st. It was unauthorized and void.

2d. That it was immaterial.

3d. That it directed the summoning of an indefinite number of jurors.

4th. That the commission directed the sheriff to summon twenty-four jurors, and it appeared by his return that he had summoned only twenty-three.

5th. That only eighteen jurors signed the inquisition.

6th. That the order of confirmation was void and inadmissible.

County Courts had jurisdiction, at that time, in cases relating to "the care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard, residing within the county." (See Code, § 30.) That is not denied, but is, as I understand from the points of the appellant's counsel, conceded; he, however, claims that "the proceeding having been instituted in the County Court, a court of special and limited jurisdiction, the record should show affirmatively and on its face that jurisdiction was acquired by that court over the subject-matter as well as of the person of the alleged lunatic, in order to warrant the court in issuing the writ in question." And he adds: "For aught that appears, the county judge, without any application to him by any one, and without any evidence showing that the alleged lunatic resided in the county of Saratoga, without which fact having been shown the County Court was without jurisdiction to act at all, he issued the writ on his own motion; that is to say, he commenced the action against Sylvester Sweet, and alleged that he was a lunatic." In answer to which it is sufficient and only necessary to say that the record is not required to show affirmatively and on its face those facts. It is enough that they did exist and were properly shown to the court; and as it was not on the trial claimed in support of either the first or sixth objection that they were not established by proper proof, it is too late to raise the question on this appeal. If it had been raised at that time, the objection could have been obviated by competent testimony. The other grounds do not appear to be relied on. The third, fourth and fifth related to matters of practice affecting the regularity of the proceedings only, and not reviewable collaterally in an action for a different object, and the second was not well founded. The proof was material and relevant. The deed in question was overreached by the finding of the jury, and their inquisition was presumptive but not conclusive evidence of the grantor's incapacity. (See L'Amoreaux v. Crosby, 2 Paige Ch. R., 422-427; Hart v. Deamer, 6 Wend., 497; Griswold v. Miller, 15 Barb., 520, and other cases cited on p. 523.)

There was a motion for a nonsuit made on the close of the evidence, substantially on the same grounds on which the objection to the admissibility of proof as to the competency of Sweet to execute the deed was based, and also on the ground of certain facts claimed to estop the plaintiff from alleging the invalidity of the deed.

This motion was properly denied. The objections relating to the grantor's competency have already been disposed of. The acts relied on as an estoppel could not justly be claimed to have induced the execution of the deed by Sweet, or its acceptance by Jacobie. They had reference to an assignment of a mortgage alleged to have been taken by the plaintiff from her father, as an equivalent for the land, at the time the deed was given, but which was denied by her, and to the subsequent transfer to and acceptance by her from him of a note given, as the defendant claimed, by Jacobie for a part of the purchase-money for the land, and an action brought for its collection. This proof may have been properly admitted as bearing on the question of capacity to give the deed, but it is wholly ineffectual as an estoppel.

After the denial of that motion, the defendant moved to strike out the evidence of the unsoundness of mind of the grantor at the time the deed was executed, and after that was refused he requested the judge to charge the jury that the plaintiff could not recover. The last motion and the said request were made on substantially the same grounds on which the motion for a nonsuit was based and were properly denied, for the reasons stated, on disposing of that question.

It follows that there was no error on the trial, and the judgment appealed from must therefore be affirmed, with costs.

All concur.

Judgment affirmed.