¶1The complaint alleges that the plaintiff "is a person of exceeding weak and feeble intellect and incapable of taking care of himself"; and "that at the time the paper writing was signed and delivered, the said Cicero was in the weak condition set forth in the first allegation." The answer denies these charges. The issue framed and submitted to the jury upon these allegations is this: "Was the grantor, Cicero J. Lawrence, at the time of the execution of the deed, capable of making a deed?"
¶2We do not think the complaint warranted this issue. A person may be of exceeding weak and feeble intellect, and incapable of taking care of himself, and at the same time be capable of making a deed.
¶3As Cicero had bodily as well as mental infirmities, it does not appear and is not charged whether his incapacity to take care of (473) himself resulted from the one cause or the other. So, also, the issue as framed is uncertain, in that it does not specifically involve an inquiry into the mental capacity of the plaintiff to make the deed in question. He might, from other causes, as duress, bodily infirmity, or undue influence, have been incapable of executing the deed. If the complaint had been definite and certain in charging mental incapacity, the issue might have been helped out by reference to the allegations of the complaint.
¶4Weakness of intellect, short of non-sane mind and memory, may not of itself be insufficient to invalidate a deed, but in a court of equity that, in connection with the fact that the deed is made in favor of a near *336
relation, who stood in peculiarly intimate relations with the bargainor, and is prejudiced and unfair to the bargainor, or other suspicious circumstances going to show that the weakness, such as it is, has been taken advantage of, may be sufficient to set aside the deed. Adams' Eq., 182, and notes.
¶5Case remanded, with leave to the parties to amend the complaint and answer, if they desire, and submit issues such as may arise upon the pleadings.
