Dawson V.McGill

• Decision Date: 16 February 1839
• Citation: 4 Whart. 230
• Parties: DAWSON v. M'GILL.
• Court: Pennsylvania Supreme Court

4 Whart. 230

DAWSON v. M'GILL.

Supreme Court of Pennsylvania.

February 16, 1839

1. An instrument under seal by which F. in consideration of $600 " grants, bargains sells, assigns, and sets over" to M. all the estate, real and personal which he inherited from his father, " to hold to him the said M. his heirs executors, administrators and assigns forever," excepting certain parts, & c., and concluding, " M now pays F. the sum of $55 on account and in part of the above consideration, and engages to pay the remainder upon the execution of a more formal assignment; and F. engages to execute a more formal assignment at the office of J. K. K Esq., to-morrow morning at 9 o'clock" ; which instrument was acknowledged by M. alone before a justice of the peace and recorded; was held to be a mere agreement, and not a sufficient conveyance to pass the title.

2. In an action of ejectment in Pennsylvania, the mesne profits may be recovered; and the plaintiff is entitled to recover the profits down to the time of the verdict.

AN action of ejectment was brought in this Court by Shadrach Dawson against Michael M'Gill, to recover an undivided fifth part of a certain lot of ground situate in the Northern Liberties of the city of Philadelphia.

The case was tried before ROGERS, J., at a Court of Nisi Prius held at Philadelphia in February, 1838.

Both parties claimed under one Joseph Fricker, who died intestate leaving five children, viz. John, Nicholas, Catharine, Elizabeth and George. A judgment having been obtained against George Fricker, his undivided fifth part of the premises was taken in execution and sold by the sheriff to Shadrach Dawson, the plaintiff, who received a deed from the sheriff, on the 23d of May, 1835. This was the plaintiff's title.

The defendant alleged--1st. That Joseph Fricker in his lifetime viz. on the 7th of March, 1831, in consideration of the transfer of certain real estate immediately adjoining, and of the sum of $3200, secured by a mortgage on the premises, conveyed the lot of ground in dispute to his son John Fricker. 2d. That George Fricker sold and conveyed to Michael M'Gill, the defendant, all his interest in the premises on the 18th of July, 1834, before the rendition of the judgment under which the property was sold by the sheriff to Dawson, the plaintiff in this ejectment.

Upon the first point evidence was given on both sides. In support of the second ground of defence, the following instrument of writing was produced and proved.

" Memorandum.

George Fricker, in consideration of six hundred dollars, grants, bargains, sells, assigns and sets over to Michael M'Gill, all the estate real, personal and mixed, which he the said George inherited from his father Joseph Fricker, or became in any manner entitled to upon his decease, whether the same is now divided, or undivided, and all the right, title and interest of said George, in or to the same, or any part thereof: To hold to him, said Michael, his heirs, executors, administrators and assigns forever: saving and excepting, however, from this sale and assignment, those portions of the estate of the late Joseph Flicker, which have been sold under order of the Orphans' Court, and George Fricker's claim to a share of the proceeds thereof,--and excepting also such sums of money as said George has received on account of proceeds of his late father's furniture--and of the rents collected by John Fricker in his late father's lifetime.

Michael M'Gill now pays George Fricker the sum of fifty-five dollars, on account and in part of the above consideration, and engages to pay the remainder upon the execution of a more formal assignment; and George Fricker engages to execute a more formal assignment at the office of John K. Kane, Esquire, to-morrow morning at nine o'clock.

Philadelphia, 18 July, 1834.

Sealed and delivered GEORGE FRICKER, (L. S.)

and money paid in MICHAEL M'GILL, (L. S.)

the presence of

J. K. KANE."

This instrument was acknowledged by Michael M'Gill alone, before a justice of the peace, on the 22d of July, 1834, and recorded on the same day. A formal conveyance of the same property, dated the 19th day of July, 1834, but not executed, was also produced.

The substance of the evidence given on the trial, is set forth in the charge of the learned judge, which, after stating the points of defence, was as follows.

" 1st point. Is the deed of the 7th March, 1831, a valid deed, or is it void?

The execution and delivery of the deed has been proved, in the usual way, by an acknowledgement, before a magistrate; and the proof of its execution by one of the subscribing witnesses. But notwithstanding this, the plaintiff insists, that the deed is void.

1st. Because, at the time of its execution, the mind of the grantor, Joseph Fricker, was so prostrated by age and disease, that he was incapable of making a contract, and particularly one of this complexity and magnitude.

2nd. That the deed is the result of imposition and fraud, practised on a man whose mind was at least enfeebled, by age and disease.

These are questions of fact, and are exclusively for the decision of the jury.

As to the first point.--A person being of a weak understanding, is not, of itself, any objection in law to his disposing of his estates, if he be legally compos mentis: whether wise or unwise, he is the disposer of his own property, and his will stands as a reason for his actions. Neither Courts of equity nor law examine into the wisdom or prudence of men in disposing of their estates. If a weak man gives a bond, or enters into any other agreement, if it be unattended with fraud, or breach of trust, the Courts will not set it aside, only for the weakness of the obligee, or the other contracting party, if he be compos mentis. Equity will not measure people's understandings or capacities. On the first point, therefore, you will inquire, not whether Joseph Fricker was a man whose understanding was weakened by age, or other causes, but whether, at the time of the execution of the deed, viz. 7th March, 1831, he was legally compos mentis; or in other words, had he sufficient understanding to make the contract of that date. It is of no consequence what name you attach to his condition at that time; whether you call it dementia, senility, fatuity, simple mania, or chaotic mania. For in this part of the case, let me remark to you, that it is of little consequence what may have been the intention of Joseph Fricker, as to the disposition of the property, whether he intended to exchange with John or not. For if, on the 7th March, 1831, he was incapable, from infirmity of mind, of understanding or comprehending the nature of the instrument he was required to sign, the deed is absolutely void, and the defendant's defence, on this ground, must fail. On the point of the state of Joseph Fricker's intellect, on the 7th March, 1831, much testimony has been adduced on both sides. It is not my intention to give it to you in detail. You have heard the comments of counsel on the evidence, and you are very competent to form an opinion upon it. It is conceded, that up to September, 1830, his mind was sound. On the other hand, it is admitted, that after, and about the 1st April, 1831, when he had, as is alleged, a shock of palsy, his mind was unsound. Your attention will therefore be particularly directed to the testimony which bears upon the intermediate period; and especially you will inquire into the state of his mind, on the 7th March, 1831, and that portion of it which immediately precedes or succeeds the execution of the deed. You will inquire whether he had mind enough left, on that day, to make the contract. For if he were capable the day before, and the day after, and was not of a sound mind and understanding on that day when the deed was signed, the deed is absolutely null and void. In forming an opinion on this part of the case, you will not disregard the opinion of a witness who, from his profession, his opportunities of judgment, and entire disinterestedness, was best fitted on that day, to form an accurate judgment on the state of his intellect. You will particularly inquire as regards the correctness of dates; to what transaction he alludes in his testimony; to the execution of the deed of the 7th March, 1831, and to the making of the will, sometime in the month of April. On this, I refer you to the testimony of Dr. Kingle, and to the comments of counsel on both sides. In connection, also, with the testimony above referred to, it will be your duty to compare and weigh the whole testimony, making the proper allowances for inaccuracies in respect to dates, of all the witnesses, and the degree of bias which witnesses must have, when their feelings or interests are involved. The facts--and when I say facts, I mean, in contradistinction to opinions--also, to which I shall merely advert, without attempting to detail, (for they are fresh in your recollection,) will not be passed by in your examination. It will be for you to determine, whether they indicate weakness of mind, as well as disease and feebleness of body. In this part of the case, let me remind you, that the burthen of proof is thrown upon the plaintiff. It is for him to satisfy you, that such was the state of his mind, when the deed was executed, that he was incapacitated from entering into the contract. But if the plaintiff has shown a general imbecility of mind, it will be the duty of the defendant to show, that he had so far recovered his understanding, on the day the deed was executed, that he fully comprehended the nature and bearing of the contract of that date. It is not sufficient, that he is able to answer plain and familiar questions. He must have what the law calls a sound mind...