¶1The opinion of the court was delivered by
¶2The object of this bill is to foreclose a mortgage, executed by John Parker in his life time, bearing date the 21st of September, 1836. The defendants claim title to the mortgaged premises under an administrator’s sale, for the payment of the debts owing by Mr. Parker, at his decease. The right of the orator to a decree of foreclosure is resisted, upon the ground that Parker was incompetent to execute the mortgage.
¶3The first question presented is, as to the competency of the widow of the intestate, as a witness in behalf of the defendants. If the mortgage is sustained, the widow is only entitled to dower in the equity of redemption. If the mortgage is set aside, the widow will then come in for her dower in the entire land, irrespective of the payment of the debts of the intestate. She is, then, manifestly interested in the result of this suit. Her testimony, then, must be suppressed, and the cause decided upon the other evidence in the case.
¶4The rule is well settled, that chancery will not set aside a conveyance, which is perfectly fair, and when no undue advantage has been taken, provided the grantor had sufficient understanding to know the nature and consequences of his act; and the burden of proof, in such case, is upon the party who seeks to avoid the conveyance. We think, from a careful inspection of the whole evidence, no such degree of insanity is made out, as should render, either the note, or mortgage, absolutely void. The evidence is quite positive, that, when he executed the note and- mortgage, the mortgagor did well comprehend what he was doing, and the consequences of his acts, — though it is quite probable, that there had *545been times, previously, when he might not have had sufficient capacity. We learn, that the disease, which finally prostrated the mental powers of Mr. Parker, was what is called a continuous disorganization of the brain itself. This, especially in its early stages, would not at all times be uniform in its influence upon 'the understanding ; and even in the summer of 1837 we learn that there was a great difference of opinion among the friends of Mr. Parker, as to . whether he was then a fit subject to warrant the appointment of a guardian.
¶5It is shown positively by the orator, .that this was a fair transaction on his part, and that the mortgage was given to secure a Iona Jide debt, and' in pursuance of a previous agreement, made at a time, when it can hardly be claimed that Parker was incompetent. There was no oppression in the orator, and no unconscionable advantage taken of the mental weakness of the mortgagor.
¶6On the whole, we think the decree of the chancellor should be reversed, and that the cause should be remanded to him, with instructions to decree a foreclosure in the usual form, upon the nonpayment of the sum due on the mortgage, and costs, at such time as the chancellor shall order.