Tolson's Adm'r v. Garner

• Decision Date: 31 January 1852
• Citation: 15 Mo. 494
• Parties: TOLSON'S ADM'R v. GARNER.
• Court: Missouri Supreme Court

15 Mo. 494

TOLSON'S ADM'R

v.GARNER.

Supreme Court of Missouri.

January Term, 1852.

ERROR TO HOWARD CIRCUIT COURT.

DAVIS & LEONARD, for Plaintiff. 1. At law, the deed of Polly Tolson is not void on account of her supposed want of intellect, there having been no commission found before the deed was made. 2. The deed of such person is not void, but is, by modern authors likened to the deed of an infant. 3. Even in equity the deed would not be avoided, if made for the benefit and advantage of Polly Tolson. 4. The instructions of the court were wrong, the cause being in a court of law, in which the deed cannot be avoided. 5. No testimony should have been received by the court on the subject of the insanity of Polly Tolson at the time the deed was made. 2 Greenl. Ev. § 369; 4 Cow. 216; 21 Wend. 142; 1 Story on Eq. 232.

CLARK & PREWITT, for Defendant. 1. The deed of one non compos mentis has always been held void at law as against the heirs and representatives. 3 Bac. Abr. 538; 2 Coke's Lit., side-page 214; 3 Coke's Lit., side-page 45. 2. The dogma, that a man shall not be permitted to stultify himself is exploded; and he may now avoid his deed by showing his own insanity. Yates v. Bowen, 2 Strange, 1104; Pitt v. Smith, 3 Camp. 33; 1 Chitty's Pl. 519; Long on Sales, 23; Chitty on Contracts, 136; Story on Contracts, §§ 23, 26, 27; 2 Greenl. Ev. §§ 246, 300; Webster v. Woodford, 3 Day, 90; Mitchel v. Kingman, 5 Pick. 431; 11 Pick. 304; Rice v. Peat, 15 Johns. 502; Long v. Whidden, 2 N. Hamp. R. 435; 2 Iredell, 23; 2 Kent, 452; Shepherd's Touchstone, 233; 2 Kent's Com. 451, 452 and note. 2. The second, third and fifth instructions, asked by plaintiff in error were properly refused; because they were calculated to mislead, and because the point is fairly put in her fourth and sixth instructions which were given, and the second and third instructions asked by defendant in error. 2 Kent's Com. 452; Chitty's Med. Jurisp. 359; Shelford's Lunacy, 258; 2 Iredell, 23; Williams v. Vanmeter, 8 Mo. R. 339; Long on Sales, side-page 74.

GAMBLE, J.

This was an action of detinue for slaves, commenced in the name of Polly Tolson, a person of unsound mind, by her guardian. The plaintiff's evidence consisted of the proceedings in the County Court of Howard county upon an inquest of lunacy, in which Polly Tolson was found to be a person of unsound mind, and a guardian was appointed; of proof that the slaves had been in the possession and were the property of the plaintiff, and that they had been demanded from the defendant, who had them in possession at the commencement of the suit. The defendant relied upon a conveyance of the slaves, made by Polly Tolson to her, prior to the appointment of the guardian. This conveyance was attached upon the ground that at the time of making it Polly Tolson was of unsound mind and incapable of disposing of her property. Upon the question of insanity much evidence was given, which need not be stated, as the case is here to be decided upon the questions of law arising upon the instructions of the court, given and refused.

The defendant asked the court to give the jury nine instructions, of which the fourth, sixth, seventh and eighth were given and the others refused. They are as follows: “1. If the jury believe from the evidence that Polly Tolson executed the deed offered in evidence, dated the third day of September, 1847, and thereby conveyed the negroes in controversy to the defendant, they must find for the defendant, although they may believe that at the time of such conveyance said Polly Tolson was of unsound mind. 2. To unable the plaintiff to recover in this action, the jury must believe that at the time of executing the deed by Polly Tolson to defendant, she was totally deprived of intellect and incapable of the exercise of her reasoning faculties. 3. Plaintiff cannot in this action avoid the deed offered in evidence, by proof of partial derangement of mind, or imbecility of mind, not amounting to idiocy, or lunacy, and unless the jury believe from the evidence that at the time of executing the deed Polly Tolson was non compos mentis, they must find for the defendant. 4. Imbecility of mind, not amounting to lunacy or idiocy in the grantor of land, is not of itself ufficient to avoid a deed. 5. Non compos mentis means a person who was of good and sound memory, and, by the visitation of God has lost it, or he that by sickness, grief or other accident, or any other cause wholly loseth his understanding. 6. If the jury believe from the evidence that Polly Tolson at the time of executing the deed offered in evidence had sufficient intellect to comprehend the nature of the transaction, they must find for the defendant, unless they further find that such deed was procured by fraud. 7. The presumption of law is that Polly Tolson, at the time of executing the deed, was of sound mind, and it devolves upon the plaintiff to prove that at the time she was of unsound mind. 8. At law, fraud is never to be presumed, but must be proved by the party relying upon it to avoid a deed. 9. If the jury believe from the evidence that Polly Tolson executed the deed read in evidence on the 3rd day of September, 1847, and thereby conveyed the negroes in controversy to the defendant, they must find for the defendant, although they may believe that at the time of such conveyance said Polly Tolson was of unsound mind, unless they further find that execution of said deed was procured by fraud.”

The plaintiff asked the court to give the following instructions, and they were all given, as follows: “1. That although the jury may believe plaintiff not insane, yet they may take any weakness of intellect of plaintiff into consideration in determining the question of fraud. 2. That if the jury believe from the evidence that the plaintiff, at the time of the execution of the deed read in evidence by the defendant, was of unsound mind and incapable of comprehending the nature...