
    Wall vs Hill’s heirs.
    Ejectment. Case 91.
    Error to the Garrard Circuit.
    
      May 17.
    
      Unsound mind. Equity jurisdiction. Inquisition of lunacy. Evidence. Right of entry. Estoppel.
    
    The case stated.
    The heirs of one who conveys land whilstlaboring under legal incapacity have a right of entry at his death.
    Courts of Equity have long exercised the power of decreeing the restitution of land conveyed by persons ofunsound mind at the instance of their committee, and as nearly as possible piquing the par ties in eta
      
      tupio — Butright of entry by the lieir in such case is legal and perfect and exists without any restitution of the price paid to the ancestor, — The right to restitution of the price is an equitable right, and cannot be asserted in ejectment.
   Chief Justice Robertson

delivered the Opinion of the Court.

William Wall seeks the reversal of a judgment of eviction, rendered against him in an action of ejectment by the heirs of John Hill, deceased, who in his lifetime, to-wit: in the year 1834, had conveyed the land in contest to Robert Burnsides, under whom Wall holds. The only ground for claiming the right of entry, asserted by Hill’s heirs since his death, which occurred in the year-1839, was his alleged incapacity to make a binding conveyance at the date of the deed to Burnsides, and which they attempted to sustain, and did establish successfully, in the opinion of the jury, by an inquisition in 1838, finding that he was then and had been from 1822, “of unsound mind,” and “incapable of managing his own affairs with ordinary prudence,” and by the concurrent testimony also of sundry witnesses examined on the trial.

Admitting the fact of legal incapacity at the date of the conveyance to Burnsides, we have no doubt that Hill’s heirs had, at his death, a right of entry, and might, therefore, maintain this action upon the refusal of Wall, as proved, to surrender the possession to them: Litt. S. C. 405; Co. Litt. 247, b.; Booth on Real Actions, p. 189; Thompson vs Leach, Comberback, 468.

Notwithstanding the erroneous opinion, once prevalent, that a man could not, even in a civil case ex contractu, stultify himself, Courts of Equity established the practice of avoiding the contracts of persons of unsound mind, upon bills filed by their committees, after inquisition of unsoundness; and in all such cases the Chancellor, acting upon equitable principles according to a sound discretion, would decree only such restitution as would place the parties as nearly as possible in stain quo. But the right of entry by the heir was legal and perfect, without any restitution of the consideration paid to the ancestor; and an equitable right to such restitution was not available in an action of ejectment, in which legal rights only are triable.

One who enters on land under a conveyance from tbe ancestor, voidable by reason of his incapacity, is estopped to denyNthe title of the heir. An inquisition taken by the authority of the Chancellor withoutanyformalorder of approval by him on its return is prima facie evidence of what it purports to find in a suit by the heir for lands conveyed by the ancestor-It iserrorin such ease to require the jury “to find for plaintiff unless they believed from the evidence, that Hill was capable, understanding] y to transact his own business with judgment and disc,relion,” the terms are too comprehensive and indeterminate.

It is error to instruct the jury that defendant cannot recover unless his evidence in the case preponderates, if the evidence be equipoised defendant should succeed.

Owsley and Turner for plaintiff; Bi’adley for defendants.

We are also of the opinion that Wall, holding and having entered under a voidable conveyance from Hill, is estopped in this action to deny Hill’s title to the land, and should,- upon the election by the heirs to avoid the deed, be deemed a quasi tenant at will.

Nor do we doubt that, as decided by the Circuit Judge, the inquisition in this case, though in a great degree ex parte, was prima facie evidence against Wall, and without any superfluous approval thereof by the Court to which it was returned. And we are of the opinion also, that the evidence on the trial preponderated in favor of the verdict.

But nevertheless, it does seem to us that the Circuit Judge went too far when he instructed the jury that before they could find for Wall “on the score of Hill’s “ capability to understanding^ transact his own business ‘ ‘ with judgment and discretion, they should be fully satis- “ fled that the evidence of defendant ouhoeighs the said ‘ inquisition and all the other evidence which has been “added by the plaintiff in this case, in regard to the un- “ soundness of the mind of the said John Hill, Sen.”

“ Discretion” and “judgment” are rather too comprehensive and indeterminate. Indiscretion and defect of judgment may exist without legal incapacity to make a valid contract; and it is not true that the defendant’s testimony should “outweigh” that of the plaintiff. If the evidence be equiponderant, the jury should find for the defendant. Before a plaintiff can be entitled to recover, his evidence of right must “outweigh” that of the defendant.

As, therefore, this instruction may have been delusive and injurious, we must, on that ground, reverse the judgment and remand the case for a new trial.  