majority"> Avejay, J.

after stating the facts: The objection to the competency of the physician’s testimony as to the sanity of the feme plaintiff, after he had observed her demeanor as a witness, is clearly not tenable. It is a well settled rule that evidence that a person is sane or insane at the time of trial is competent as tending to show the condition of his mind at a previous period, when some act was done by him, the character or validity of which depended upon his mental capacity; and though months or years may intervene, such *163 evidence does not become incompetent by the mere lapse of time,, but the jury must be left to judge of its weight. 2 Greenleaf on Ev., §690; People v. Farwell, 31 Cal., 576; Freeman v. People, 4 Denio, 9.

The plaintiff offered the depositions of three persons, when the defendant objected, on the ground that he had not received notice of one day of the opening of the depositions by the Clerk, as required by The Code, §1357, and that the Clerk had not passed upon them. It is the fault of the plaintiff if a fuller finding of the facts would have shown a waiver of the statutory requirement by the defendant. The law makes it the duty of the Clerk to open the depositions sent to him by the commissioner in a sealed envelope, and to pass upon them, “after having first given the parties, or their attorneys, not less than one day’s notice.” The plaintiff should have demanded that this notice be given and acted on, and then the deposition would have been deemed, in the language of the law, “legal evidence.”

Even when one purchases the land of an insolvent debtor, and a controversy ensues between the creditors of the vendor and the vendee as to the character and validity of the conveyance, the fact that an inadequate price was paid is but a circumstance tending to show fraud, and, at most, is to be considered a badge of fraud, that throws suspicion on the transaction and calls for close scrutiny. Bump, on Fraud. Conv. 76, 77 and 87; Brown v. Mitchell, 102 N. C, 369. When the grantor seeks to set aside an executed conveyance on this ground, proof of even gross inadequacy of price, standing alone as a circumstance, in the absence of evidence of actual fraud or undue influence, is insufficient to warrant a decree declaring the conveyance void. Bigelow on Fraud, p. 136, §9; Kerr on Fraud and Mistake, 189; Guster v. Thomas, 1 Ired. Eq., 199; Potter v. Everett, 7 Ired. Eq., 152; Green v. Thompson, 2 Ired. Eq., 365; Moore v. Reed, 2 Ired. Eq., 580. “ Inadequacy of price is not a distinct princi- *164 pie of relief in equity, but it depends upon the attendant circumstances which show frauds Potter v. Everett, supra; Story’s Eq., §249. Where it appears that certain confidential relations existed between the parties that need not be here enumerated, there is a presumption that the deed is fraudulent, and the burden is cast upon the grantee of rebut ing it. But where, in addition to the admitted disparity between the price paid and the real value, there is conflicting evidence as to the mental capacity of the grantor or her subjection to, or freedom from, some fraudulent and controlling influence, the inadequacy of price is a circumstance to be considered by the jury, with all other testimony tending to show fraud, undue influence, or want of capacity.

If.there be evidence tending to show any fact that, if proved or admitted, would raicé the presumption that the transaction was fraudulent, as alleged, the trial Judge may, of his own motion, and must, if tequested in apt time, or if it be essential to a proper understanding of the application of the law to the testimony, instruct the jury as to its weight;, but he is not at liberty to say to the jury that any fact, proved or admitted, that does not, in law, raise a presumption of the truth of the allegation of fraud, is a'strong circumstance tending to establish it. Permit v. Broadway, 95 N. C., 551.

In the case at bar, as in many others that have come-before this Court for review, several propositions submitted in the prayer for instructions are extracts from opinions-delivered by the Court in chancery causes, and embody expressions as to the weight of the testimony in that particular suit in which the Judge, as Chancellor, discharged the functions now belonging, peculiarly, to the jury, as well as the duties proper of a Court, and often necessarily discussed the law and the weight of the evidence in the same-connection. The reasons assigned in these opinions for giving more or less weight to any testimony were not *165 intended to be, and cannot, without invading the province of the jury by violating The Code, §413, be adopted as rules io be laid down in the charge of the Court for .their guidance. In the case of Ferrall v. Broadway, supra, the Judge below adopted the exact language of this Court in Jackson v. Rhem, 6 Jones’ Eq., 141, in telling the jury that certain testimony offered in that cause to show that two persons, then dead, were lawfully married, “ought to be so oi erwhelming as not to have a doubt about ihejjids thus decland.” After stating that the instruction was erroneous, the late Chief Justice Smith, delivering the opinion of this Court, said: “What effect is to be given to testimony competent in law to establish a Ret belongs exclusively to the jury to determine, as also the credibility of the witnesses who give the testimony. This is so universally recognized and acted on in the administration of the law, in tribunals constituted of a Judge and jury, and (xercising their separate functions, as to need no support from references. The error committed in the charge is in imposing upon a jury t.he rule which a Judge, passing upon facts without a jury, prescribed for his own action as one which the jury is hound to obey.” State v. Williams, 2 Jones, 257; Wiseman v. Cornish, 8 Jones, 218; Flynt v. Bodenhamer, 80 N. C., 205; State v. Atkinson, 93 N. C., 519.

AVe do not wish to be understood as modifying or relaxing the rule reiterated in Harding v. Long, 103 N. C., 1, and in Brown v. Mitchell, 102 N. C, 347, as to the quantum and quality of proof required in certain classes of cases, as where equitable relief is asked on the ground of mistake in the execution of a deed, or the action is brought to establish a resulting trust, because it is supported by a long line of adjudicated cases in our own reports and other recognized authority, and is founded upon reason and public policy. Sandlin v. Ward, 94 N. C., 490; Ely v. Early, 94 N. C., 1; Kornegay v. Everett, 99 N. C., 30. But opinions of Chancellors as to the weight of evidence in particular cases, when *166 the}'' are often inconsistent with ideas of the testimony, expressed by the same Court or the same Judge upon a state of facts almost identical in some other suit, must not be mistaken for rules of evidence. Where the facts tending to establish the right of a plaintiff to the equitable relief demanded are in dispute, the jury must pass upon the testimony, and the Judge'has no right to express an opinion as to its weight, but may, and under certain circumstances must, explain the law as to presumptions arising on the evidence, or the rule as to the quantum of proof laid down in the cases last mentioned.

Without a discussion in detail of the numerous propositions submitted by the Judge below to the jury with the purpose of presenting the law applicable to every phase of the testimony, we may state, as our conclusion arising out of the principles already announced, that there is no error in his Honor’s instructions of which the plaintiff can justly complain, and the verdict of the jury has made objections on the part of the defendant unnecessary. The plaintiff might well have been content with the rule laid down b}r the Court, that gross inadequacy of price is a strong circumstance, tending with others, as weakness of mind, to make out a case of fraud; but the Court, at the plaintiff’s request, submitted other propositions of law, perhaps still more favorable to her.

The Constitution gives the parties the right to trial by jury. The statute intrusts to the jury, subject to the rules stated, the exclusive power to pass upon the weight of the testimony, and the Court can only review errors of law. If, upon the admitted facts, it should seem to us that the plaintiff has made a bad bargain in exchanging a life estate in a tract of land worth from $800 to $1,000 for an estate of the same duration in another worth from $150 to $200, we could not for that reason alone question the validity of the transaction. The jury, acting under instructions as to the law, perfectly fair to the plaintiff, have declared in their findings *167 that she had sufficient mental capacity to make a valid deed when she executed the conveyance to the defendant, and they had the advantage of watching the demeanor of all the witnesses, including the plaintiff, on the stand. There is no error, and the judgment must be affirmed.

Affirmed.

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