¶11. We are of opinion that there was some evidence of the delivery of the mortgage. Its weight or sufficiency is not open for consideration under this bill of exceptions. Execution *98of a deed in the presence of an attesting witness is evidence from which to infer a delivery. Moore v. Hazelton, 9 Allen, 102, and cases there cited. The authorities on which the petitioner relies are those in which the sufficiency of the evidence to establish the legal delivery of an instrument has been in question. Here the execution of the mortgage was not a necessary fact to be proved in the case. It came in merely incidentally, as one of the circumstances attending the principal transaction ; and, though the evidence was very slight, the court could not be required to rule that there was none.
¶22. The evidence that the grantor in a deed remembered what he had done, and afterward spoke of it and gave his reasons foi it, and did not express any regret or dissent, was properly admitted as tending to prove that he understood his act at the time, and that he ratified it. The deed of an insane person is not void, but voidable. The maker of it, or his legal representative, may avoid it: or, when in possession of his full powers of mind, if he recovers his reason, he may affirm and ratify it. The contract is not a nullity, but, until disaffirmed, is binding; and the sane party cannot repudiate it. Allis v. Billings, 6 Met. 415. Arnold v. Richmond Iron Works, 1 Gray, 434. Gibson v. Soper, 6 Gray, 279. Any distinct and decisive act of recognition as a valid and subsisting contract is competent evidence of ratification. á. new delivery of the deed is not requisite, as it would be if the deed of an insane person were void.
¶33. The deed of an insane person being not void, but voidable only, it follows that the person who claims or takes title under a deed is not obliged to give any proof of the sanity of his grantor. The conveyance is binding upon the grantee, even if the grantor be insane, until it is avoided by the latter or his representative. In the case at bar, the petitioner claims title as heir to his grandfather. By proving his grandfather’s seisin and his own descent, he makes out that title. The respondents introduce a deed from the grandfather, giving a prior title to them, and prove its execution by the grantor. They need prove nothing more. They need not show the sanity of the grantor, be. cause the deed is good until avoided, and to have the right to *99avoid it the petitioner must show that the grantor was not of sound mind. The burden of proof was therefore rightly held to be upon the petitioner upon the issue of sanity. The authorities cited by the respondents’ counsel will be found to turn upon the form of issues out of chancery, or other pleadings, in which che general rule is stated, of which there can be no doubt, that the party alleging an affirmative fact is bound to prove it. The rule of evidence as to wills depends upon different principles.
¶44. The instructions given to the jury appear to us to have contained all for which the petitioner asked which could properly or should have been given. The.first instruction asked was given in substance, and with only such qualification as the law requires. Influence properly gained, although used for a selfish purpose, and to obtain an unjust and unfair advantage, will not avoid a deed thereby obtained, unless there is fraud or duress, or the influence is exerted by a stronger mind over a weak one, in such a manner and to such a degree as to substitute the will of the person exerting the,influence in place of that of him upon whom it is exerted, so that the latter is no longer a free agent.
¶5The facts set forth in the second and third prayers for instructions were submitted to the jury as evidence of fraud and undue influence. There is no legal presumption arising from them, but only a presumption of fact, of which the petitioner had the benefit, so far as the facts were established to the satisfaction of the jury. The court were not required to assume them to be proved • nor to give a hypothetical ruling upon them separately from the other evidence in the case.
¶6 Exceptions overruled.