
    John Doe, on the demise of Simon Rice, et al. vs. Anthony Dignowitty, et al.
    Upon a joint and several demise, laid in the same count in a declaration in ejectment, if either be sustained by the proof, a recovery may be had according to the fact.
    The old common law rule, that a man cannot stultify himself, and allege his own incapacity to make a deed, has been very properly exploded, and now a man may show his own incapacity as a ground for vacating his deed.
    Testimony sufficient to satisfy the minds of the jurors is all that is requisite to establish fraud.
    This was an action of ejectment, brought in the circuit court of Adams county, to recover a lot in Natchez. The declaration contains only one count, which lays a joint and several demise in the names of Simon Rice and Noah Barlow, and John G. Taylor. The declaration, with the usual notice annexed; were served on Mary Wormley, Elizabeth Davis, and George W. Boiren, the tenants in possession^ At the return term, Anthony Dignowitty, who claimed to be the landlord of the tenants in possession, appeared, and on motion was admitted as a defendant. On the trial, after reading the return of the sheriff, showing the service of the declaration and notice annexed on the tenants in possession, the lessors of the plaintiff read to the jury a deed to the lot in controversy, from George Snider to Simon Rice, bearing date the 25th day of April, 1832; a judgment in favor of Noah Barlow and John G. Taylor against Simon Rice; the execution which issued thereon, and the sheriff’s return, showing a levy on said lot, and a sale thereof to Barlow and Taylor, and also a deed to them from the sheriff of Adams county for the same.
    The plaintiffs then introduced said sheriff, who proved that the levy made by him, as returned on the said executions, was upon the property in controversy, that he had sold it according to law, and Barlow and Taylor became the purchasers thereof. Being cross-examined by defendants, he stated that he had been indemnified in making the sale, by bond from Barlow and Taylor, which he required, because he had understood that there appeared to be record of a deed from said Rice to said Dignowitty, for said lot. At the time that fact was communicated to said Barlow and Taylor, they replied they knew there was such a deed, but said that it was obtained fraudulently, and did not pass the title from Rice; that he had seen the deed of record before the sale, and that at the time of the sale Dignowitty was living on the premises. Peter Sigmond was then called, w:ho proved that the true tenants were in the possession of the premises, at the time of the service of the declaration and notice in ejectment, holding adversely to the lessors of the plaintiff. That prior to February, 1838, Simon Rice had occupied the house and lot in controversy, from the date of the deed from George Snider to him, claiming it as his own ; that when witness came to Natchez, said property was held by Mrs. Brill, who sold it to Snider, and it had been claimed by those holding under said Brill, up to the 27th February, 1838, when said Simon Rice started for Europe, at which time he left his wife and children residing on it. Here the plaintiffs rested their case.
    The defendants then offered two deeds, purporting to be from said Rice to said Dignowitty, for said property; one dated the 18th day of January, 1838, and the other the 27th of February following, which were read, subject to all legal exceptions; the plaintiffs giving notice at-the same time, that they would attach said deeds, and offer evidence to show that they had been procured by fraud by said Dignowitty, and that Rice had not mind or memory at the time they were executed, to know what he was doing; and that if he had mind or memory to make such deed, they were made to hinder, defraud, and delay the creditors of said Rice, particularly said Barlow and Taylor, and without consideration.
    Defendants proved, by Lyman Potter, that at the time of said sheriff’s sale he and a friend had intended to bid for the property ; but upon examination of the records of the office of the clerk of the probate court, they found the record of a deed from said Rice to said Dignowitty, for the property in controversy, which made them afraid to bid. This fact he communicated to said Barlow and Taylor, who replied they knew there was such a deed on record, but said it was acknowledged after judgment against Rice, in their favor, and they thought the deed was fraudulent, and they purchased the .lot, because they could prove the deed to be fraudulent.
    This being all the testimony offered by the defendants, the plaintiff then recalled said Sigmond, who stated that he was well acquainted with said Simon Rice, he had known him ever since he had been in the place ; that during the month of February, 1838, in his opinion said Rice had no mind or memory, and did not know what he was doing ; his derangement of mind had been brought on by misfortunes, distress, and excessive dissipation, and his mind was so impaired, that in witness’ opinion he was wholly unqualified to 'transact business for twelve months preceding that date ; that on the 27th day of February, 1838, said Dignowitty told him that he would have to send said Rice away, to keep him from being put into jail for debt; that he had got things so fixed, as to keep Barlow and Taylor from selling his property ; that Rice would die before he got back, but that he intended the property for Rice’s family ; that Rice was put on board a steamboat by Dignowitty, to be sent to Europe ; that he, witness, met Rice under the hill at Natchez, when he was about leaving, and that he, according to the opinion of witness, had no idea where he was going ; witness thought so, because he did not take leave of his most intimate friends, or say where he was going. When cross-examined by defendants, he stated that said Dignowitty had been but a short time in the country, was a gin-wright by trade, and a head workman. Dignowitty had overpaid four hundred dollars for Rice. Never knew him but once to have money, and that was. five hundred dollars. After Rice left, he, Dignowitty, claimed the property himself, and said Rice had conveyed it to him for five years, and he was to pay Rice’s debts. Rice left his family in the possession of the property, and was absent to Europe fifteen months. When he returned he had recovered his mind, and it was a long time before witness could convince, him that Dignowitty had got a deed from him for the lot; he always denied all knowledge of making, or agreeing to make, such a deed; witness never heard him say anything about not paying Barlow and Taylor’s debt. In Rice’s absence, Dignowitty sold and disposed of all his household furniture, which was worth, at the time Rice left, over two thousand dollars.
    In the progress of the examination of this witness, plaintiff asked him if the said Dignowitty had not seduced the wife of said Rice, and afterwards gone off with her? Plaintiff stated that his object in asking the question was, to show that Dignowitty intended, by sending Rice off to Europe, to get clear of him, and to hold the property for the purpose of defrauding the creditors of Rice; but the defendant objected to the witness’ answering this question. His objection was sustained by the court, and the plaintiff excepted. Witness further deposed, that no money was paid to Rice; that Dignowitty gave him five dollars to go to New Orleans, and then paid his passage, and gave him thirty dollars to go to Europe with, as Dignowitty afterwards told witness ; that he, Dignowitty, had sent Rice, whilst in Europe, two hundred dollars. Plaintiff then introduced W. H. Stuart, Esq., who deposed that he was unacquainted with Rice, except what he knew from reputation, and from Dignowitty himself; but he was under the impression, from these sources of information, that Rice was a great sot, and constantly under the influence of liquor. Dignowitty called on witness to write a deed from Rice to him, when he, witness, advised Dignowitty to bring Rice to his office early in the morning, as that would be the time when he would be most capable of doing business. Dignowitty did accordingly bring Rice to witness’ office the next morning, when witness thinks he read the deed he had written over to him, andRice then signed it. Rice appeared bloated and stupid, and was not capable of transacting business in a proper manner.
    This being all the evidence adduced on either side, the defendant moved the court for the following instructions, which were severally given by the court, as asked, to wit:
    
      “ 1. If the jury believe that Rice made the deed to Dignowitty, with intent to defraud his creditors, they cannot find for him.
    
      “2. They cannot find that either one of the plaintiff’s titles is good; they must both be good and stand together, or the verdict must be for defendants.
    
      “3. A deed must be taken most strongly against him who makes it.
    “ 4. One cannot deny his own deed.
    
      “5. A deed acknowledged and recorded within three months, takes effect from the date in the body of the deed.
    “ 6. A deed without any acknowledgment and record, is good between the parties.
    
      “ 7. Tenants in common are they who have lands or tenements by several titles, and not joint titles, and none of them know his several (that is, separate,) portion, but they ought to hold lands and tenements in common, and so take the profits. Thomas’s Coke, 590.
    “8. "When two have several titles to the whole or entire tract of land or tenement, they are not tenants in common, but such titles are adverse.
    “9. If the jury believe that the title of Barlow & Taylor is adverse to that of Rice, there is no tenancy in common.
    “ 10. And if they believe there is no tenancy in common, or joint tenancy of the plaintiffs, and the demise in the declaration is joint and several, they must find for the defendant.
    “ 11. Under a joint and several demise by two, the jury cannot give a general verdict for one of the plaintiffs. Adams on Ejectment, 186.
    
      “ 12. To affect a deed at common law an entire loss of the understanding must be shown. The common law has drawn no line to show what degree of intellect is necessary to uphold it. 4 Cowen, 207.
    “13. It does not follow that because, according to the modern doctrine of the court of chancery, one would be a proper subject of a commission in nature of a writ de lunático, that his acts are void in a court of law. Ib. **
    
      “ 14. That the plaintiff, to destroy the effect of a deed from Rice to Dignowitty, on- the ground of mental disability, the proof lies on the plaintiff who urges it. Ib.
    “ 15. That the deed of Rice to Dignowitty is presumed to have been executed when Rice was of sane mind, unless the plaintiffs show and, prove a general derangement of Rice. Ib.
    “ 16. The defendant is not compelled to prove sanity of mind in Rice at the time of making the deed, unless he be shown and proved to be generally deranged. Ib.
    “17. If the plaintiffs rely on'fraud to destroy the deed to Dignowitty, the fraud must be clearly proved.
    “18. If purchasers at sheriff sale have notice that the defendant in execution before judgment had made title to another person, and such deed is recorded before the sheriff’s sale, the sheriff’s deed is void. 8 Wendell, 620.
    “ 19. If the jury believe that Rice had conveyed the land before judgment was recorded against him, the ,land conveyed cannot be sold under the judgment, the law will intend such conveyance to be bona fide, and for valuable consideration; till the contrary be shown they must find for the defendant. 4 Ib. 599. • ‘
    “ 20. The parol declaration of one in possession of lands, as to the nature and extent of his interest, are not admissible against him if he have higher title than by parol, that is by deed. 4 Ib. 587. ■
    “ 21. That a deed is higher evidence by title than parol.
    “22. When a joint,demise is laid in the names of several lessors, it must, be'proved as laid, and unless it be shown that the lessors had such an interest as would enable them to join in a demise, the defendant must have a verdict.
    “ 23. That unless Rice had such an interest in the land as to be able to make a demise or lease at the time laid in the declara-' tion, they must find for defendants. , ’
    “24. The deed from Rice to Dignowitty imports a consideration, and the want of such consideration must be clearly proven by plaintiffs.”
    To which several opinions of the court in giving said several instructions, the plaintiff excepted before the jury retired from their box.
    The jury having returned a verdict for the defendants, the plaintiff moved the court to grant a new trial, on the grounds, “that the verdict is contrary to law and evidence,” and because “ the court erred in giving instructions as asked by defendants,” which motion was overruled by the court, and exceptions taken. Judgment was entered for defendants against plaintiff for costs, and this writ of error is prosecuted to reverse that judgment.
    The errors assigned are as follows: “ First. The circuit court erred in giving each and every of the instructions from No. 1 to No. 24, as asked by the defendants, and excepted to by plaintiff.
    “ Second. The circuit court erred in refusing to grant a new trial as asked, to plaintiff.
    
      “ Third. The circuit court erred in not granting a new trial to the plaintiff, on the grounds and for the reasons contained in plaintiff’s motion for a new trial.
    
      “ Fourth. The verdict of the jury on the trial in the circuit court was against the evidence and law of the case, and the judgment of the circuit court is against law and evidence.”
    
      Sanders and Price, for plaintiff in error.
    The first and second assignments of error may be regarded as covering all that is material in the controversy, and without treating the multitude of instructions separately, in the order in which they were asked and given, we will remark that there are many of them abstract, not applicable to the cause before the court, as appears by this record, and were, by these terms, without the appropriate qualifications and exceptions, well calculated to, and did necessarily mislead the jury, and therefore erroneous.
    The instructions raise three questions. First, is it competent for tenants in common, or in severalty, or joint, to unite in a joint and several demise in a declaration in ejectment, whereby to enable the plaintiff to recover, by showing title in one or more of the lessors, holding by either of such tenures 1
    
    Secondly. Can a deed be assailed at law for fraud 1
    
    Thirdly. Can a deed be resisted on a trial at law by a lessor of the plaintiff, on the score of mental debility, or insanity at the time of its execution, by one of the lessors 1
    
    We maintain the affirmative of each of these propositions.
    The action of ejectment is a fiction, framed and introduced by the enlightened jurist, to obviate the perplexities incident to the trials for the recovery of the possession of real property from which the owner or possessor has been wrongfully ejected, or from whom it is wrongfully withheld, resulting from the ordinary plurality of parties, transmission of titles, by death, operation of law or contract, which would otherwise make such actions interminable, or otherwise defeat the ends of justice. The office of a declaration in ejectment is like that of all other actions, to notify the defendant of the title or titles held by the plaintiff, of the thing or property sued for, and the time when his right existed, and as the origin of the action itself was designed to simplify legal proceedings, and guaranty to those who had rights,-a speedy administration of justice against those who had violated them; which view is moreover sustained and approved as well by the legislation of modem times, as by the practice of our courts. We are unable to perceive any objection to the uniting in one count of a declaration, all that could be accomplished by a plurality of counts.
    The case of Courtney, et al. v. Shorpshiré, reported in 3 Littell’s Ky. Rep. 265 do 268, was upon a declaration éontaining .but one count, which alleges that William Shorpshire, William B. Scott, and Polly his wife, jointly and severally demised to the plaintiff the premises in question. On the trial the evidence introduced showed that they were tenants in common, and not joint tenants. The defendant, in that case, moved the court to, instruct the jury as in case of a nonsuit; and the court in considering of that point, use the following decisive language.
    “ The refusal of the circuit court to instruct the jury to find as in case of a nonsuit, we think was correct. The title of the lessors of the plaintiff, as they were shown to be tenants in common, would not indeed support a joint demise, according to the decisions of this court; but we must, we' apprehend, understand the land to have been severally, as well as jointly demised by the lessors of the plaintiff. The defendant having confessed the lease, it was of course unnecessary to prove it, but it must be presumed as laid in the declaration, unless it were impossible to be so. But surely there is nothing which renders it impracticable in fact, or absurd in law, that a plurality of persons should demise the same land, for the same term, severally and jointly. We are not prepared to say that they could not do so by the same deed; but be this as it may, they certainly might do so by several deeds; for each by' his several deed could have demised his undivided moiety, and by uniting in another deed have jointly demised the whole, and thus, literally they would have jointly and severally demised the premises, as alleged in the declaration.”
    This principle is laid down in 27 Law Library, title Ejectment, 144, to wit: “ "Where there exists any doubt as to the parties in whom the legal interest resides, or at the time when the title of the lessors of the plaintiff accrued, it is usual to insert several demises in the declaration according to the circumstances of the case.”
    In the case of Jackson, ex dem. Roman v. Sidney, 12 Johns. 185, the court sustains the propriety of separate demises where different lessors hold parts of the title, and says it is a course therefore that ought to be encouraged. The authorities referred to in that case, are Doe, ex dem. Morton v. Butler, 4 Wendell, 149; Dan v. Brown, 4 Cowen, 483; White v. Pickering’s lessee, 12 Serg. & Raw. 435; 2 Tidd’s Practice, 1205, 5.
    It is also well settled that “ lessee of tenants in common, suing for the whole tract, may recover for as much as he shows title in and demises by any of the co-tenants.” See Daniel v. Bratton, et al., 1 Dana Ky. Rep. 209, 210.
    “Joint tenants and coparceners, may either join or sever in demising. Upon a several demise from each, the portion belonging to him may be recovered, and if several joint tenants or coparceners join in the action and declare upon the separate demises of each, the whole premises may be recovered.” 27 Law Library, 144; in support of which the author cites Doe, d. Marsack v. Read, 12 East, 57; Doe, d. Whayman v. Chaplin, 3 Taunt. 120 ; Doe, d. Gill v. Pearson, 6 East, 173; Doe, d. Litlham v. Fenn, 3 Camp. N. P. C. 190.
    We are apprized that in the trial of the action of ejectment, the courts of several of the States and particularly Kentucky, have held, that where the plaintiff sets out a joint demise, he must prove it as laid. This savors much of technicality, and is followed more as a precedent, than as obtaining’ the more enlightened judgment of the court; and although this principle is thrust at us in all possible shapes by the defendant, in the instructions asked and obtained in the circuit court, and an array of authorities here, we humbly consider that it has no application to this case; ours is not a joint demise; it is joint and several, uniting the attributes of both,' and the exhibition of title in any one or more of the lessors, no matter by what tenure, will entitle the plaintiff, John Doe, to recover, unless defeated by better title or other bar to the action.
    The condition of the parties to this suit “ exhibiting a doubt ” as to whether the title to the land in question is in Simon Rice, or in Barlow and Taylor, well approves the resort to the joint and several demise alleged by plaintiff.
    In the state of Tennessee, where for a series of years this action has been more frequent than in any other state in the Union, save that of Kentucky, (and in which two states the attention of the bar and the courts have been more frequently directed than in all the other states,) it has been decided, that on the trial of an ejectment, upon a joint demise, upon proving title in any one of the lessors, the plaintiff may recover to the extent of the interest of such lessor, &c. See Roberts v. Pharis, 8 Yerger, 447 to 451. And I feel persuaded that this court, with all the lights of experience, particularly when aided by the spirit of our legislative enactments, to simplify legal pleadings and throw off technicalities, will have no hesitation in adopting those rules of practice most efficient to that end.
    
      Our legislature has enacted as follows: “In all personal actions, where the declaration shall plainly set forth sufficient matter of substance for the court to proceed upon the merits of the cause, the suit shall not abate for want of form.” Sec. 21.
    After issue joined in an ejectment, on the title only, no exception of form or substance shall be taken to the declaration in any court whatever. Sec. 22.
    “ Upon a joint demise of the whole tract, the plaintiff may recover according to the joint interest of the lessors an undivided part.” Mullen v. Hoy, 4 Bibb’s Rep. 668; 3 Bibb, 304, 305.
    “It is certainly the settled doctrine of the English courts and been repeatedly recognized by this court, that a plaintiff in ejectment is not bound to show title to all the land claimed by his declaration, but may recover according to the extent of his title made out at the trial.” Allen, d. v. Trimble, 4 Bibb, 25 ; Scott, et al. v. Bealle, et al., 1 A. E. Marshall’s Rep. 69, 70.
    On the second and third points, we refer the court to the case of Sanders's heirs v. Buskirk, 1 Dana, 410, 411; Hayden v. Dunlap, 3 Bibb, 216 ; where a deed may be attached collaterally for fraud, <fcc., even a judgment may be thus attached; Campbell, et al. v. Brown and wife, 6 How. 106.
    The proof in this cause shows two grounds which is conclusive upon them, first that Dignowitty acknowledged that he had got things fixed so that Barlow and Taylor could not imprison him, add to this, his utter inability to pay, and want of testimony showing that he had ever paid one cent, together with the circumstance of making two deeds purporting to be of the same date, the consideration of one $15,000, of the other $5000, and his anxiety to get clear of Rice, leave not a shadow of doubt as to the transaction, “ to hinder and delay the creditors of Rice,” made void by our statute. ■ SeeH.<&H. 390. Secondly, if Rice has not mind or memory to make a contract, and that he had not is proved by the only witnesses who speak of him, (Sigmon and Stewart,) the very first constituent quality of making a deed is absent, and any deed purporting to be made by such person can be attached anywhere.
    
      If we are correct in the foregoing positions, then the entire mass of the instructions asked by the defendant and given by the court, are erroneous, or abstract, and calculated to mislead the jury, and therefore equally erroneous. Let us test one or two of the two classes of instructions, and see if they can stand the test of the above principles.
    “ 1. If the jury believe that Rice made the deed to Dignowitty with intent to defraud his creditors, they cannot find for him.” This instruction is erroneous in many respects. Juries are not learned in technical terms. They esteemed the case as one of Rice against defendants. They could not know who John Doe was; and whilst Rice is striving to show fraud, the defendants, by the artful arrangement of words and terms, use the fact as one of protection instead of defeat — there was no issue whereby the jury could find for or against Rice. If the instruction had been qualified by saying that they could not find for plaintiff on the separate demise of Rice, it would have been less objectionable, but when the question of Rice’s capacity was expressly made, the instruction should have been refused without a further qualification. It should have expressed, “ if they found that Rice had capacity to, and did make the deed, &c., then, &c.”
    “2. They cannot find that either one of the plaintiff’s titles is good; they must both be good and stand together, or the verdict must be for the defendants.” This instruction wars with every principle known in the practice of pleading in actions of ejectment. Any plurality of titles may be conveyed or cast upon the nominal plaintiff, and if any one is sustained by the proof the plaintiff will recover. And it is not a necessary corollary “ that both titles must be good and stand together, or the verdict must be for the defendant.”
    “ 4. One cannot deny his own deed.” There are many exceptions to this rule; it can be impeached for fraud, mistake, execution by duress, &c.
    “ 6. A deed without any acknowledgment and record is good between the parties.” Now I hold that an acknowledgment constitutes one of the essential prerequisites of a deed. These instructions, containing fragments of the opinions of courts and principles of law, without qualification or explanation, were such as would mislead any ordinary jury, and the same objections apply to nearly all the others, for all which we contend that the circuit court erred in refusing to grant to the plaintiff a new trial, and that the judgment of the circuit court ought to be reversed, with instructions to award a venire de novo, &c.
    
      Dubuisson and Armat, for defendants in error.
    The first error assigned in this cause by the plaintiff in error is, that the court erred in giving the instructions numbered from 1 to 24, as asked by the defendant.
    The instructions cover the whole ground of the cause, and may be classed under the four following heads:
    1st. Those which relate to the state of facts as applicable to the demise in the declaration. These are numbered in the bill of exceptions from 7 to 11, also No. 2, 22 and 23.
    The demise in the declaration is in the following words: “For that whereas Simon Rice, and Noah Barlow and John G. Taylor, jointly and severally, demised to John Doe, on the 1st day of January, 1840, &c.”
    The proof and evidence showed that Simon Rice had, on the 18th day of January, 1838, executed a deed to A. Dignowitty, which was acknowledged and recorded on the 19th of the same month. On the 27th of February following, Rice and his wife acknowledged another deed for the same property, which was recorded on the 28th. The date in the premises of the deed is the same as the former deed, to wit, January 18th, 1838. The second deed is precisely the same, except the name of Mary Rice.
    On the 27th of February, 1838, a judgment was had against Rice by Barlow and Taylor. Under this judgment an execution was issued, and the demised premises were levied' on and sold by the sheriff, and, made to Barlow and Taylor, who were the purchasers, dated June 18th, 1838. It was also attempted to be proved that the deed from Rice to Dignowitty was obtained by fraud. Admitting this proof sufficient for the sake of the argument, we contend the proof does not sustain the demise in the declaration.
    1st. Because, if the deed from Rice to Dignowitty be void for fraud, the deed passed nothing to Dignowitty, but all the rights remained in Rice until the levy and sale by the sheriff on the 18th of June, 1838. But the levy and sale by the sheriff divested Rice of all of his rights, and the title to Barlow and Taylor was. from that moment complete and entire, not fof a moiety or a part of the premises, but the whole. Rice could then have made a several demise in the declaration, the legal title being in another; and if he could not make a several demise because he had no title, he certainly could not join with Barlow and Taylor. There was no community of interest to base a joint and several demise upon. 2d. Because if there were no fraud in the deed of Rice to Dignowitty, and it were not void, Barlow and Taylor acquired no title by the sheriff’s deed, as they purchased only the interest of Rice, and his interest had passed to another by prior deed.
    Under either aspect of the case, the respective titles of Rice, and Barlow and Taylor, are adverse to each other, and cannot stand together. There is no joint tenancy, for they hold by deeds of different date, and from different persons. There is no tenancy in common, because each title claims the entirety. They are, therefore, several and adverse titles, which cannot coalesce by operation of law, nor by conveyance.
    Joint tenants may make joint and several demises. So may parceners, but tenants in common must make several demises. The demise must be proved as laid, or the plaintiff cannot recover. They will in no case be allowed to take a verdict contrary to the allegations of their own declaration. See Thomas’s Coke, 590. Trespass Case, 6 Reports, a. Tilling-hast’s Adams, 275, and cases there cited. Doe v. Read, 12 East, 57. Doe v. Fenn, 3 Campbell, 190. Adams on Ejectment, 186. Thakerly v. Weston, 2 Wils. 232. Coke Littleton, 200. 12 East, 61. 4 Bibb, 422. These authorities most fully sustain the positions here taken, and the instructions of the court.
    
      2. The second head includes those which relate to the alleged fraud of the defendant, Dignowitty, in obtaining the deed from Rice, want of consideration, and insanity of Rice. The instructions are numbered 1, 3, 4, 12, 13,14, 15, 16, 17, and 24.
    1st. The want of consideration is not proved. All the testimony amounts scarcely to a suspicion. The opposite side will not deny that the instructions give the law; and if they do not apply to the facts, it is because he failed to prove what he attempted.
    If want of consideration is set up to a deed, it must be clearly proved. The deed imports consideration, and that is prima facie evidence of consideration. There certainly can be no stronger evidence that money has been paid, than the acknowledgment under seal of him who receives it. There must be some fraud in obtaining such evidence of consideration, and the onus of proof rests on him who denies his deed. The common law will not allow a man to deny his deed, and even in equity, he must make clear proof. There is no such thing here. Nor does the common law recognize any partial loss of understanding, as presumption of fraud. To affect a deed, there must be a total loss of understanding. There is no line drawn in the common law, to show what degree of intellect is necessary to uphold it. It does not follow that, because according to the modem doctrine of the court of chancery, one would be a proper subject of a commission de lunático inquirendo, his acts are void at law.
    Even if the deed were made by a lunatic, the party seeking to avoid it would be bound to show that the deed was executed when the lunatic was laboring under a fit of derangement. If a general derangement were proved, the defendant would then have to show that, at the time of the execution of the deed, the party was not insane. There was no proof of general derangement. As to the fraud attempted to be proved by the plaintiffs, the only thing that bears the slightest resemblance to it is Rice’s own conduct. If the conveyance were fraudulent at all, the fraud was against Rice’s creditors, and was his own act. The common law looks with suspicion on one who stultifies himself; but it regards with even less good feeling he who proves himself a knave.
    The following cases are quoted, and they cover all the principles contained in the instructions contained in this head. 2 Roll. Abr. 28. 1 Inst. 253. 11 Reports, 27. Co. Litt. 247. 4 Coke, 124. 3 P. Williams, 130. 4 Cowen, 207. The case in 4 Cowen is the latest and fullest on the subject of avoiding deeds on account of mental derangement.
    3. The third class of instructions relates to the sheriff’s deed. They are numbered 5, 6, 18, 19.
    1st. The sheriff’s deed gives no title, because Rice had conveyed all of his interest to Dignowitty, by deed, anterior to the judgment. Both of Rice’s deeds come within the contemplation of the statute. They were both dated before the judgment ; one was recorded before it, and both were recorded within three months after the date, and therefore took effect from the date. The defendant claims under the first deed, and holds the other only as a relinquishment of dower of Mary Rice.
    2d. The sheriff’s deed to Barlow and Taylor is void for maintenance. They and the sheriff knew that the defendant, Dignowitty, was in possession, by the deeds of record and by actual notice. The sheriff’s deed was therefore void. 8 Wend. 620.
    3d. The deed of Rice was before the judgment, and the law intends it to be a bona fide' conveyance, until the contrary be shown. This was not done. 4 Wend. 599,
    4th. The instructions No. 20 and 21 relate to the parol declarations of one having title.
    The parol declarations of one in possession of lands, as to the nature and extent of his interest, are not admissible against him, if he had higher title than by parol. The defendant, Dignowitty, claims under a writing undeyseal. 4 Wend.
    The 2d, 3d, and 4th assignments of error are all fully answered in the argument on the first, and it is unnecessary to add anything in regard to them separately.
    
      Montgomery and Boyd, on the same side.
   Mr. Justice Clayton

delivered the opinion of the court.

- Upon the trial of this cause the court, at the instance of the defendants, gave twenty-four separate charges to the jury, all of which were excepted to by the plaintiffs. It will not be necessary for us to examine many of them.

The lot in dispute had been sold under execution, as the property of Rice, and purchased by Barlow and Taylor, who held the sheriff’s deed for it. Rice, before the rendition of the judgment, had conveyed the land to Dignowitty, who was in possession at the time of the sheriff’s sale. The declaration contains but a single count, and states a joint and several demise from Rice, and Barlow and* Taylor.

Upon this point the court charged the jury, “that they cannot find that either one of the plaintiff’s titles is good; they must both be good, or the verdict must be for the defendants.” If the declaration had contained several counts, and had set forth several as well as joint demises, it would have been more formal and regular, and would have avoided all difficulty on this head. The effect of a joint and several demise must be the same. It is the joint demise of all the parties, and the several demise of^ each. If a lessor, in fact, have different leases from different persons, he may give in evidence all his title papers, and recover upon such as vest an interest in the disputed land. 8 Yerger, 451. Bevans v. Taylor, et al., 7 Harr. & Johns. 1. Courtney v. Shropshire, 3 Littell, 265.

It is said that this course ought to be encouraged, because it prevents a multiplicity of suits, saves costs, and puts the defendant to no inconvenience. Jackson, ex dem. Roman, v. Sidney, 12 Johns. 185.

The fourth instruction is, “that one cannot deny his own deed.” Taken in connexion with the evidence, this was intended to propound the old common law rule, that a man cannot stultify himself, and allege his own incapacity to make a deed. “ This rule has been very properly exploded,” says Chancellor Kent, “ as being manifestly absurd, and contrary to justice.” 2 Kent, 451. 5 Pick. 431. Rice v. Peet, 15 Johns. 503.

The only other charge we shall notice is in these words — “ If the plaintiffs rely on fraud to destroy the deed to Dignowitty, the fraud must be clearly proved.” It is not easy to say precisely what is meant by the words clearly proved. If anything more, is intended than that the jury must be satisfied, by the proof of the existence of the fraud, then the instruction is too broad. The plaintiff’s testimony must be sufficient to produce belief in the jury that there was fraud in the transaction ; this may be done by circumstantial, as well as by positive proof. The la.w- only requires such proof as will convince the jury of the truth of the allegation.

"We think these several charges go too far. That upon a joint and several demise, if either be sustained by the proof, a recovery may be had according to the fact. That a man may show his own incapacity to vacate his deed, and that testimony to satisfy the minds of the jurors is all that is requisite to establish fraud.

The other instructions are little more than variations of these, and call for no special observation.

The judgment will be reversed, and a new trial awarded-  