, i'EDEBAL BEPOBTEB.
tiff claims to own,' but the ownership of which is disclaimed by the defendants. The plaintiff is entitled to a decree for the equitable relief asked, and above indicated, with costs. But as to obtaining possession of the premises from the defendants, and damages, there is a plain, adequate, and complete remedy a.t law, and hence, under section 723 of the Revised Statutes, this suit in equity cannot extend to such relief. An ejectment suit might have been brought first, and the title tried, and possession and damages obtained, without the equitable relief here asked; but the fact that the equity suit was first brought does not authorize the overriding of the plain provision of section 723, or warrant the giving in the equity suit of the purely legal relief asked for. The statute of Vermont (Rev. Laws 1880, § 1247) authorized an action of ejectment against 110 person in possession of land by a. person claiming its seizin or possession, and by section 1251, if the judgment is for the plaintiff, he can recover his damages, and the seizin and possession of the land. The fact that the plaintiff's title accrued under a writ issued by this court is of no force to authorize this court to give in this suit the legal relief asked, beca.use that writ hs been executed, and has passed i,nto a title, which is now the same as any other legal title, for the purpose of relief at law. The case of Ward v. Chamberlain, ut 8Up'f'cl, is an authority for the not decreeing possession to the plaintiff in this suit. A decree will be entered in accordance with the foregoing views. Judge WHEELlllB concurs.
MoNETTjGuardian, etc., ".
(Oircuit Oourt, W. D. Michigan, 8. D. September 28, 1882.)
1. CONTRACT-MENTAL INOAPAOITY-BURDEN OF PROOF.
The burden of proof is upon one alleging mental incapacity to make a valid contract, unless it is shown that the p!,rty contracting was insaneprior to the date of the contract, ",hen the burden is shifted, and those claiming under the contract must prove that it .was executed during a lucid interval
Partialinsanity, in the absence of fraud· or imposition, will not avoid a con tract unless it, exists with reference to the subject oHt at the time of its execution; but in cases of fraud it may be considered in determining whether a party has been imposed upon.
A contract becomes executed when nothtng remains to be done by either party, and where the transaction has been completed, or was completed at the time the contract was made.
4. Bum-BILL DISMISSED FOR WANT 011' EQUITY.
Where a mortgage was given to secure the purchase price of personal property sold by defendants to the mortgageors, who were at the time apparently, or supposed by defendants to be, of sound mind, and the contract has become executed by maturity of·the debt, foreclosure and sale, and deeding of the premises, the court having no power to restore defendants to their condition before they part.ed with their property, a bill to have the mortgage and all proceedings taken to foreclose it, including the deed to defendants as purchasers at the foreclosure sale, declared void, will be dismissed for want of equity.
In Equity. Hearing on pleadings and proofs. J. L. Hawes and O. W. Powers, for complainant. J. W. Breese and L. W. Wolcott, for defendants. WITHEY, D. J. The bill of complaint alleges that Charlotte E. Daly was insane in May, 1871,-not competent to enter into a binding oontract; that she owned land in Kalamazoo county, Michigan, and then mortgaged it to defendants to secure the payment of promissory notes for $2,900, made by her and her husband to defendants for the purchase price of a steam saw-mill. The object of this suit is to have the mortgage, and all proceedings that have been taken to foreclose it, including the sale and master's deed, given to defendants as purchasersat a foreclosure sale, declared void. The mortgage was foreclosed in 1874; tlJ,e sale under the decree was in November. Daly and wife were personally served, in the foreclosure suit, with subprena, but failed to appear and defend. In January, McNett was appointed guardian of Mrs. Daly, on the application of her husband, by the probate court of Kala.mazoo county. The answer denies the alleged insanity of Charlotte E. Daly, and all knowledge and information of any claim or pretense that she was insane at the time the mortgage was executed, or at any time anterior to the foreclosure of the mortgage. It alleges that James W. Daly, husband of Charlotte, purchased from defendants a steam saw-mill for the price of $2,900, about the time the mortgage was given, and that the sale to Daly was made upon the understanding and faith that he would secure the purchase price by a mortgage upon the land in question; that at the time of the arrangement and sale of the mill they supposed the title to the land was in James W. Daly, but proved to be in his wife. They would not have sold the mill to Daly on credit without security. The burden of proof rests on complainant to show th..,t Ml·S. Daly was not competent, mentally, to bind herself by contract on the
eighteenth day of May, 1871., If once .shown that she was generally il16alle prior to that date, the burden would be changed, and defend· ants be put to show that the mortgage was executed during a lucid interval. 4 Cow. 207; 1 T. B. Mon. 264. The witnesses who have testified are those who have known Mrs. Daly more or less intimately; two of her children, and two physicians who have been. called to attend upon her or some of her fam.ily. Attention will be called: to some of the testimony, which exhibits the character of evias to Mrs .. Daly's mental condition. Mrs. Higgins, a neighbor, observed a change in Mrs. Da,ly's mental condition about 1866 or 1867. It took the form of melancholy-a disposition to be alone; talking to herself, and reluctance to talk with others. In 1877 Mrs. Daly grew to herself much, and acted as if seeking to drive some invisible person or object away from her; would strike at and "talk 'as if some person were present. Mrs. Higgins noticed more or;less of the same peculiarities up to 1876. Mrs. Daly's two sons testify to much the same, and add that she poured water on her head arid person frequently. In 1869 Mrs. Daly'1Vas ill with malarial fever. One of the sons testifies that it lasted about three months, but the attending physician' limits the period· to less than two weeks. A sisterin-la1V,residing - at Richland, about 10 miles from Kalamazoo, where the Dalys resided in 1869 and 1870 and a part of 1871, also subsequent to 1872, who frequently saw Mrs. Daly, never obs61'ved· anything' pemiliar in: her mental oondition until the time of her fevel',in 1869. Mrs. Daly was atone time a believer inspiritualism, and it was noticed that she muttered and talked t-oherself a good deaL Dr. Stillwell made professionaloalls at Mrs. Daly's in 1869,1870; 1871, 1873, and 1874. He attended Mrs. Daly i'li 186'9, during a severeattaok of: malarial fever, accompanied with congestive chills',- and some mental disturbance. At the oloseOf about, two weeks sha was reooveredin bodily health, but the mental disturbance remairied· to someeJi:tent, thoughl!lhe was muchiIll. proved :inthat-:respeet. The -doctOr a.t firatattributedMrs. Daly's mental conditionentir-ely;,to the severiiyof the fever.' Having learned that she re'ltd"ltnd studied the stibject of' spiritrialism, and had attended, spiritual ,meetings, so called, he was o-f opinion that these things clOlutributed to her mental disturbance. . " Dr. Stillwell, in' ·187Wattended a sick child o-f Mrs. Daly's, and then' observed thatshe muttered, and talked to herself as she had done He observed the same thing in the subsequent years that he
M'NETT 'Ii. OOOPER.
saw her, btit noticed no other peculiarity to indicate mental derangement. On the occasion of his first visit to the child he prescribed medicine, and gave the directions for administering it to Mrs. Daly, which she a;ppeared to receive with proper understanding, aM at his next visit was satisfied his directions had been followed, from the condition of the patient. Other testimony is of the same import as that referred to, to establish complainant's case. On the other hand, it appears that Mrs. Daly was placed under no restraint by her husband or family, but permitted and waifaccustomed to go when and where she pleased alone and without supervIsion. She attended to her household affairs, was left incllargeofthe house and of her children in the absence of her husband; anda:ttended to her own shoppinR. She appeara to: have been treated by;het'family as in every way competent to look after her household and f'amity affairs, and. whatever else concerned her. In the spring' of' 1811, about the time the mortgage was given, Daly moved with his family to Clyde, in an adjoining county, wherEl he, was engaged, with :a-llerson by the name of Mann, in the manufacture of lumber for'mote'than a year. The business was carried in the name of Daly & M,aIln, Mrs. Daly and not Mr. Daly being s member of the firm. Mann lived in the same house with the Dalys, Who kept boarders. - He Mrs. Daly at times, when alone at her work; would laugh,< taik,'and use profane language,-the only peculiatity nenoticM in reference to her. She had charge of the work in the house, and seems to ha'Ve occupied herself with the duties of the household. The notary who took the acknowledgement of Mr. and Mrs. Daly'to the 'of the mortgage visited Mrs. Daly for that purpose, at her home in amazoo, and wastherea'bout 15 minutes. SaW':t1othirig indicating any mental disturbance; she acted like it saIie'1leFson. General insanity has not been proved. If 'there was habituiliderangemellt it was partiaJ; and not shown to be of a; C'haractedo affectMrs. Daly'S mental capacity to transact If her condition was otherwise it is not proved. MrS. Daly exhibits partial mental derangement,; more or less mental itself under a singlephas6; halludilation on the subjeat of 'spirithal influences and mltnifestatioDs. The degree 01 mental .detttngemimt which will render a person incapable cif entering been the subject of frequent judicial decisions. ' Contracts', of lunatics, and persons compusaJ,'e ili'VaJid! 'King, 4: Cow. 207, a American case, it' 'wais declared that 'a. 'pel-son non campus only-when he has wholly lost
common law haa drawn no line to show what degree of intellect is necessary to uphold a dee.d Qr contract. Mere weakness of understanding is not of itself any objection in law to the validity of a con· state the rule in a tract, in the absence of fraud. Other somewhat modified form. The real inquiry is whether the party had the ability to comprehend, in a reasonable manner, the nature of the affair in which he participated. If fraud has been practiced on a person of weak or impaired intellect, the presence of fraud introduces other principles of decision. 23 N. J. Eq. 509. There must be inability to know what the act IS to which the contract relates. 1 Whart & S. Med. Jur. § 2. So long as one possesses requisite mental faculties to transact rationally the ordinary affairs of life, his contracts will be valid. 84 Ill. 371; 40 Ill. 188; 52 Me. 305. He must have sufficient intellectualcapacity to know what he is doing. It is not necessary to have sufticient discernment to transact business with prudence and discreti()D. A person must be able to understand what he is about. 25 N. Y. 1; 10 Ind. 185. Partial insanity will not avoid a contract unless it exists with reference to the· subject of it, although it may be considered in determining whether the party has been imposed upon. 40 Iowa, 90; 6 Moore, :P. O. 341; 73 Ill. 269; 58 Me. 453, 459. In the last case it is said hallucination is not per Be insanity. It does not necessarily avoid a contract. It may exist as to matters in no way affecting the capacity to contract. Worcester adopts the medicinaL definition' of hallucination,-a morbid error in one or more senses, etc. "The party claiming to avoid a contract, by reason or temporary hallucination or delusion, must show its existence at the time of the contract sought to be avoided for such cause, and that it was of a charaoter affecting his capacity to make the oontract." If the mind of Mrs. Daly was laboring under hallucination for years, or permanently, and if she was insane, it would be general of partial, aocordingtQ the nature and extent of the malady. 58 Me. and 23 N. J.. Eq. Bupra; 73 Ill. 269; Notes to JackBon v. King, 15 Am.· Dec. 361, 364. The mortgage has become an e.xecuted contract. A contract becomes an executed one when nothing remains to be done by either parly"andwhere the transaction has been oompleted, or was completed at the time the contract was made. 1 Bouv. Law Diet. 356. Themort,gage was given to secure the purchase price of personal property sqld 1>Y defendants to Daly on cre.dit, and upon the faith and understa.nding tha.t payment was to be secured by this mortgage.
BARRIS V. UNION PACIFICR. 00.
The debt has matured, the premises have been sold under 8 foreclosure decree, and deeded to defendants.' The mortgage was made by persons apparently, or supposed by defendants to be, of sound mind. There is no power in the court to restore defendants totlieircondi, tion before they parted with their property to Daly. Let decree be entered dismissinR the bill of complaint for want of equity, and for payment by complainant of the costs of tliesuit.
HARRIs t1. UNION PAOIFIC
(Oircuit oourt, D. Colorado. June, 1882.)
Negligence is the want ofthat care and prudence which a man ot ordinary intelligence would exercise under aU the circumstances of the case.
B.um-BURDEN OF PROOF-PROXIMATE CAUSE.
Negligence is a question of fl4l,t,to be found by the jury, and in to reo .cover, the plainti1f must establish by a preponderance of proof that the defendent was guilty of negligence, and that the injuty complained of was tile natural and ordinary result of 8uch negligence, and,' that the negligence was the proximate cause of the injury which a reaso,nably prudent and cautious person ought to have apprehended might resuU ,fr-om the act which he did. While a railroad company is bound to use great care in order to keep!its tracks clear for the sllJety of its passengers, and for Hs employes, it is not ,reo sponsible for the unlawful act of some third party in' plaQing upQn the track without its knowledge or consent, unless it beiDa case where it h8d by its conduct done some act which it m,ight reasonably have anticipated would lead to the placing of the obstruction upon the track.
SAME-RAILROAD COMPANY TO' KEEP TRACKS (''LEAR.
4. SAME-MEASURE OF DAMAGES.
In determining the amount of damages, the jury should consider the pain and " suffering to which plaintiff has been subjected, both mental and ph,rsical, the loss of time and 1088 of wages which has resulted from his injury,' the nature and extent of physical injuries, their effect upon ,his ability, to ear,n hitlliving since the accident as compared with his ability to do so before, and the probable effect of those injuries upon his future health and strength.' Under all these circumstances, and in' view 'ofa11 these facts, they should estbnate the damages, and give him such swn as they think will be a not, an unreasonable, compensation.
E. L. Johnson, for plaintiff. · Willard TeUer, for defendant. MCCRARY, C. J.,(chairging jut'y.) It is your province'and duty to detElrmine the facts of' this case in the light of the evidence which ;you have heard, and oHhe which the court will 'The