majority">' PETERS, J.

The deed under which the appellant, Kennedy, seeks to support his title, was made by Marrast himself, and not by his agent. And Kennedy must be charged with notice, just as if he dealt directly with Marrast himself. If Marrast was of non-sane mind to such a degree as to incapacitate him from making such a contract when the deed was signed by him, and he did not afterward affirm it when he was of sound mind, it was void. A legal capacity to consent is the essence of all contracts, whether by deed or parol. Without this they are absolutely, void. 1 Story Eq. §§ 222, 223, 227, 228, 229, 230; 1 Pars. Cont. 383, et seq.; 5 Bac. Abr. (Bouv.) 5, 26; 2 Poth. Obl. by Evans, note III, p. 22, et seq.; Rawdon v. Rawdon, 28 Ala. 565. A bill to set .aside such a deed may be filed by the heirs of the maker. — Newland Cont. p. 19, note C.

The capacity of John C. Marrast, deceased, the ancestor of the complainants in the court below, is the question put in issue by the pleading. This is a fact, and not a question of law. This fact was submitted upon the proofs taken in the cause to the decision of the chancellor. His decision was favorable to the complainants and against the capacity of Marrast to make the deed. In such a case the decision of the chancellor will not be disturbed, unless there is a decided preponderance of the evidence against the conclusion attained by him. — Phillips, adm’r, v. Phillips, 39 Ala. 63. I think the testimony in this case sufficiently sustains the decree. It will therefore be left to stand.

The decree of the chancellor is therefore affirmed, and said John P. Kennedy, appellant, will pay the costs of this appeal in this court and in the court below.

[Note by Reporter. — At a subsequent day of the term, *168appellant applied for a re-hearing, and filed in support thereof the following argument:]

The rule of law is well settled, and has been stated with clearness by Peck, C. J., in the case of Cotton v. Ulmer, as follows: “ Reason is the common gift of God to man; hence every man is presumed to be sane, and insanity can only be proved by clear and unexceptional evidence.”

Partial insanity will, however, invalidate a will or a contract, but it must be fully and clearly established that the act was the result of such partial insanity; for to hold that testimony of a doubtful or suspicious character, even as to partial insanity, would defeat a solemn act, would in truth and in legal effect be to annul the proposition that insanity, to invalidate a deed or will, must be clearly established.

The question, therefore, is not whether the testimony in this case renders it doubtful whether Marrast was compos mentis at the time of executing this deed; but it is, whether the evidence clearly establishes his mental incapacity. And we insist that this is a rule of law that is binding on the court. The burthen is on the complainants to overcome the deed. It is assailed on the ground of mental incapacity alone, for neither fraud or undue influence is pretended ; and before it can be annulled, “ the proof must be dear and unexceptionable ;” that is, the mind of the court must be satisfied of incapacity, for we must be guided by the rule laid down in Cotton v. Ulmer, which only announces a rule that has been recognized for ages.

It may be true, as stated in the opinion delivered, that in cases of doubt this court will not reverse the decision of the chancellor on a mere question of fact; yet we ought to look at the case in 89 Ala. 63, Phillips v. Phillips.

In that case, the bill was filed to impeach a deed. The testimony rendered the question of capacity doubtful. The bill was dismissed, and the decree was affirmed in this court, in harmony with the general principle just adverted to, and announced by the Chief Justice in Cotton v. Ulmer. And if the court, in 39 Ala. 63, had put the decision on *169this ground, its reasoning would have been as cogent as its .judgment or decree was correct. But to say that if a chancellor, upon doubtful testimony, sets aside a deed for want of mental capacity, this court will not reverse, is to say that if the chancellor disregards a cardinal rule of law, this court will not examine it, because he committed the error in looking to the evidence, or the weight of evidence. To such a proposition this court will not commit itself.

It may be added, that the language in 39 Ala., used by the court, is apt to mislead, and in the case at bar may have misled this court; for the well-considered rule is laid down in the celebrated case of Kennedy v. Kennedy, 2 Ala., in which Collier, C. J., says: “ We will not undertake to say that the appellate court will not reverse a decree on the ground that an issue was not directed to be tried by a jury, when it appears that the facts are so disputed as to render it impossible to explicate them, even although no issue was prayed in the court below. In such a case, a viva voce examination before a jury seems indispensable.”

Now, if there ever was a case where an issue should be directed, it is this ; for no human mind can read all the depositions and say, “ I have no doubt but Marrast was mentally incapable of making a contract of this character.” He must say, indeed all must say, that at the hast the question of his mental capacity is doubtful.

The whole proof thus answered, the rule seems to apply the deed must prevail, and the bill be dismissed.

If, however, the mental capacity be so involved in doubt that the court should be unwilling to dismiss the bill, then the issue should be directed, as stated in 2 Ala.

The following response to the petition was made by—

PETERS, J.

The evidence in this case was carefully examined in the preparation of the opinion in the first instance. I have again examined it in ■connection with the authorities furnished by the eminent counsel in support of the application for a re-hearing, and I do not feel that the testimony did not justify the decree of the learned chan-

*170cellor in the court below. It is true that in the court below the presumption is in favor' of the sanity of the maker of a deed. But when the case comes here, the presumption is the other way. It is in favor of the correctness of the chancellor’s decree, the verdict of the jury, or the decision of the judge below upon the facts, unless there is a strong preponderance of the evidence against the judgment below. — Phillips v. Phillips, adm’r, 39 Ala. 63.

The re-hearing is therefore denied, with costs.

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