
    Abel A. Lemon, executor, et al., plaintiffs in error vs. William Jenkins et al., defendants in error.
    (Atlanta,
    January Term, 1873.)
    1. Deed — Monomania—Improper Influence — Evidence.—Where the issue upon trial was, whether a deed made by the grantor under which property acquired by his first wife, is conveyed away to the exclusion of his child by her, and under which the fee simple title is conveyed to his daughter by his second wife and the children 'of his brother, was the result of monomania and the improper influence exercised by his brother, which deed the grantor subsequently had taken up, and which he again confirmed, it was not error in the Court to allow a witness to testify that some time between the execution of the deed and the death of the grantor, he had heard him (the grantor) say that his brother was trying to get him to convey to the brother’s children said property, which came by his first wife, and that he asked witness’ advice about it; that at the time the brother was present with some papers he was endeavoring to induce the grantor to sign. (R.)
    2. Same — Same—Instruction.— Upon such an issue it was not error for the Court to charge the jury that if the grantor, at the time of the execution of the first deed was laboring under monomania, caused by the marriage of his daughter, and the deed was the result of that monomania, they should set it aside. (R.)
    3. Verdict. — The verdict of the jury being the decision of a tribunal appointed by law to pass upon facts, and being not contrary to, but rather supported by the evidence taken altogether, ought not to be disturbed. (R.)
    New trial. Evidence. Monomania. Insanity. Deed. Before Judge Green. Henry Superior Court. October Term, 1872.
    *Abel A. Lemon, as executor of Alexander Lemon, deceased, filed his bill against William Jenkins and others, containing substantially the following allegations;
    Alexander Lemon died on December 17th, 1866, and shortly, thereafter complainant qualified as his executor; the assets of the estate which have come to complainant’s hands are insuffi-. cient to satisfy the debts of deceased. The second item of testator’s will is as follows:
    “Item 2d. That whereas, I did heretofore, to-wit: on or about the 13th day of November, 1861, make and execute to.my daughter Eliza Ann Lemon, and the children of Abel A. Lemon, a cer-. tain deed of gift to a certain parcel of land, lying and being in the fourteenth district of Monroe county, and known in the plan of said district as lot number eighty-nine containing two hundred and two and a half acres, more or less; and, whereas, I did subsequently, to-wit; about the year of our Lord, 1863, make and execute to my daughter, then Mary Price, (now Jenkins) and her heirs, a deed of gift to the same tract or parcel of land. It is my will that said tract or parcel of land shall, at my death, become the property of my said daughter Eliza Ann Eemon, and the children of Abel A. Eemon, to-wit: Elizabeth J. Lemon, Martha A. Lemon and Abel Alexander Lemon, share and share alike; that my executor hereinafter named, shall, in his discretion, sell said land at any time after my death, or if he thinks best, keep and rent it out or otherwise use said land, until all of the above named legatees become of age. And that no part of said land shall belong to my daughter, Mary Jenkins, or her heirs.v
    Complainant further alleges that on November 13th, 1861, testator made and delivered to the legatees mentioned in said item, who were then minors, a deed to said tract of land, which remained in the possession of complainant’s family for one or two j^ears, when it disappeared and perhaps may have fallen into the hands of testator. After the death of testator this deed was found, but in a mutilated condition, the names of testator and of the attesting witnesses having been torn off. *This instrument had never been recorded. On August 14th, 1863, testator executed a deed conveying said tract of land to one William Price in trust for the use of his wife Mary F. Price during her life, then to her children, and if no children, to her heirs. William Price died and his widow subsequently married the defendant, William Jenkins. Testator, on February 23d, 1865, having discovered that the first deed was lost or mislaid, reaffirmed the same under his hand and seal. William.'Jenkins and wife claim said land as do also the grantees in the first deed. Under these circumstances complainant cannot sell the same and apply the proceeds thereof to the payment of testator’s debts without litigation. He therefore applies to the Court for its assistance in order to avoid .a multiplicity of suits, etc. Prayer, that all of said deeds may be decreed to be canceled, and that the Court shall decree to whom said land belongs; that the writ of subpoena may issue.
    The answers of the defendants are unnecessary to an understanding of the decision of the Court, and are, therefore, omitted. The bill, evidence and motion for a new trial clearly present the case.
    The complainant introduced the following evidence:
    Abel A. Lemon, the complainant, in addition to sustaining the allegations of his bill, testified as follows: The deed of November 13th, 1861, conveying the land in controversy to Eliza Lemon, the daughter of testator by his second wife, and to the children of complainant was drawn by complainant. It was signed by testator, and witnessed by Humphrey Tomlinson, John A. Smith, and Bushrod Pettil, a Justice of the Peace, in the presence of complainant. Testator then took the deed, called up the children, and delivered it to his daughter Eliza for herself and the others. Eliza handed the deed to complainant and requested him to keep it. Testator was complainant’s brother. He requested complainant to write the deed for him. Advised him to make a will. He refused. Complainant put him off once or twice, until he said that if complainant would not prepare the deed, he would get *some other person to write it for him. Kept the deed six, or eight months, perhaps longer, when testator asked for it. Complainant told him that he had no right to give up the deed, but disliking to refuse him, prepared an exact copy of the original. Some time after this, testator and his son-in-law, William Price, came to see complainant, and testator requested a settlement of money matters between them, and while complainant was looking up the papers showing testator’s indebtedness to him, testator asked for the deed. Complainant found it and placed it on the table. Testator’s indebtedness to him at that time was more than $1,500 00. He paid in cash all over that amount, and gave me his note, with Price as security, for the balance. .Complainant then left the room. At this time Price held the deed in his hands and was reading it. When complainant returned, testator and Price were gone and the deed was missing. Never asked testator or Price for the missing deed, as he had a copy. Never saw this deed again until he found it in the office of John R. Plart, Esq., when he took it up and said it was his property and he should keep it. When the deed was taken from the possession of complainant it was not mutilated; when he found it again the names of the maker and of the attesting witnesses were torn off. The deed was executed at the house of testator. He was sober and perfectly capable of making any contract. The deed was read over to him in the presence of the witnesses. He executed it freely and voluntarily. Complainant did not influence him to execute the deed, but advised him to the contrary. Does not, know who mutilated the deed. Testator frequently sent for complainant to advise him in his business. Sometimes drew papers for him. Was usually with him on such occasions. On the occasion that the deed of November 13th, 1861, was executed, complainant drew a deed for testator, in which he conveyed his negroes to his wife for life, remainder to his daughter Eliza, and in case she died without issue, remainder over to the children of complainant. Thirty or forty negroes were conveyed. Com- ' plainant was appointed trustee. Testator had lost one eye, ^suffered from rheumatism, and could not move about well. He sometimes took a drink, but never saw him when he was unable to make a contract or to transact his business. In 1861, testator’s daughter, Mary, was eighteen or twenty years old. Price ran away with her and married her. Testator was displeased with this conduct. When he was in trouble he did not drink. He was very much enraged at this marriage. He cried and cursed about it. The deed was made on the second day after her marriage. The land in controversy was drawn by Mary’s mother and her sister, Eliza Smith, as orphans. When the deed of 1863 was executed, testator and Price and his wife were friendly. Price died before the testator. When Mary married Jenkins, testator was very much opposed to it and tried to keep her from it. The certificate by which he reaffirmed the deed of 1861 was prepared by complainant and signed immediately after Mary’s second marriage. Complainant also drew the copy deed to which said certificate is attached.-
    Humphrey Tomlinson proved the execution and delivery of the deed of November, 1861.
    John A. Smith corroborated Tomlinson as to the execution and delivery of the deed, and testified additionally as follows: Witness conversed with testator for some time before the other witnesses to the deed came in, about making a will and not a deed; told him that if he made a deed he never could revoke it if he subsequently changed his mind, but if he made a will he could change it. Testator replied, “No, I intend to make a deed, so that it cannot be changed, for my determination is, and I have made up my mind, that my daughter Mary shall never have the wrapping of my finger’s worth of my property, and there is no use in talking about it.” Testator was competent to transact business, and executed the deed freely and voluntarily. Pie was neither drinking nor drunk at the time. Has known testator for many years, and have never seen him in a condition incompetent to transact his business. He was greatly excited — mad about Mary’s marriage. He cried during the time witness was there.
    *Doctor Tye testified as follows: Knew testator for twenty-five or thirty years; was his family physician in November, 1861. He was capable of attending to his business and of making any sort of contract. He was an excitable man and sometimes drank liquor. He kept it in his house. He was' sometimes pretty far along in drink.
    The answers of Andrew J. Cloud to a set of interrogatories were substantially as follows: Testator told witness that he made a deed in 1861, conveying the property in dispute to his daughter Eliza and the children of complainant. Afterwards saw the deed; it was s'igned by John A. Smith, H. Tomlinson and B. Pettil, Justice of the Peace, as witnesses. Does not know when the deed was executed, except from the date it bore. It was dated November 30th, 1861. Compared the copy deed prepared by complainant with the original before it was mutilated, and found it correct. This occurred at the house of complainant, at McDonough. Complainant had the original and the copy in his possession at the time. Testator was very much opposed to his daughter’s marriage, but never saw him act like a wild man. He told witness that she should never have any of his property. Has no clear recollection on the subject, but it is the impression of witness that he witnessed a deed from testator to his daughter, Mrs. Jenkins. Has heard testator say that this property came by his first wife.
    Complainant introduced the original deed of November 13th, 1861, in its mutilated condition, and the examined copy thereof.
    The depositions of Eliza Barham, formerly Lemon, the daughter of testator, of Nancy Lemon, his widow, of Minerva Lemon, his sister-in-law, and of Elizabeth J. Lemon, corroborated substantially the testimony of complainant as to the execution of the deed of November 13th, 1861, and as to the condition of testator at the time. They further testified that no influence was used on testator to procure said deed, but supposed it was caused by the marriage of his daughter Mary with William Price against his wishes; that complainant only *prepared the deed under the threat of testator that unless he did so he would procure the services of some one else '; that William Price and his wife were aware of the existence of said deed soon after its execution.
    Complainant introduced testimony to show the indebtedness of testator, unnecessary here to set forth, and closed.
    ■ The defendants, Jenkins and his wife, introduced the deed of the 15th of August, 1863, conveying said property to Price as trustee for his wife.
    Thomas M. Speer testified as follows: Testator would not sell the land in controversy because he became the owner of it through his first wife, and said he intended it for his daughter Mary, her only child. Witness endeavored to purchase it repeatedly, but testator always refused to sell for the above reasons. About the time of Mary’s first marriage he drank a great deal. Had offered more than $3,000 00 in gold for the land. The additional fifty acres embraced in the deed to Mary, of 1863, was worth $10 00 or $12 00 per acre. Never saw testator when he was not competent to transact business.
    Dr. Manson testified as follows: In 1851 or 1852, a Mr. Tanner offered $4,000 00 for the lot. Witness advised testator to sell it. He said that' he would not sell it at any price, that the land came by Mary’s mother and he intended it for her. Never saw testator when he was incapable of attending to business. Witness refused to marry Mary to Price because he thought she ■was too young. Testator was a very excitable man. In a trouble in reference to a daughter’s marriage, witness knows no man who would have been more excited. There was no reason why he should have been in so excited a condition. During excitement, which is continued, the blood tends to his brain, until it would or might produce apoplexy.
    James B. Crabbe testified as follows: Has heard testator say many times that the land in controversy came by Mary’s mother and he intended to keep it for her. Saw Price steal Mary at the time he married her. As soon as' Price and Mary ran away, testator came running by witness’ shop, saying *he was ruined, that Mary had run away. The next day he was very much excited, crying and cursing. Saw him take a drink. Some time after this testator became reconciled ' to Price and his daughter. Saw Price and his wife at testator’s house.
    
      Charles Walker testified as follows: Has heard testator say that the lot in controversy came by Mary’s mother and he intended it for her. Price was a clever, hard working man, of good family. Testator and witness had been very friendly previously to Mary’s marriage, but he would not speak to witness for six months afterwards, either because he thought witness’ son had assisted in stealing Mary or because he heard that witness was to have married them.
    James M. Hambrick testified as follows: Has heard testator say that the land in controversy came by Mary’s mother and he intended it for her. Witness boarded at testator’s house. For many nights after Mary’s marriage, when witness woke up, he would hear testator making a-noise as with'a stick, saying he was ruined, and in the morning he would be in the back yard crying, beating the ground with his stick and saying, “Oh! my child! my child!” This furious excitement continued for two or three days. From what witness saw and heard, he does not think that testator was competent to contract. When he had business to transact, he would send for complainant. Has heard him speak oftener of Mary than of Eliza. He did’not go to the table for a week after Mary’s marriage. Thinks that he indulged Mary that he might induce her not to marry. Witness is of counsel for Mary Jenkins and collected the testimony.
    ■ The defendant, Mary Jenkins, the daughter of testator, testified as follows: Married Mr. Price on November 11th, 1861. Was then nearly fifteen years old. Testator had told her ever since she was a child that the land in controversy was for her. Was reconciled t.o testator about six months after the marriage. He was sick and sent for defendant and her husband about midnight; they went at once. The next year they lived in the same house with testator for about three months. Was *present when he made the deed to her in 1863. Q. R. Nolan and Mr. Cloud attested the deed. This instrument, the mutilated deed and the deed to his negroes, were delivered to defendant by testator, who told her to hold them for her protection. Testator sent the money by Mr. Price to buy the additional fifty acres already mentioned. Defendant married Jenkins on February 19th, 1865. Testator.was angry about this second marriage for nine or ten months. Has six children; the oldest is ten years of age.
    James A. Maxwell testified as follows: Has heard testator say that the land in controversy came by Mary’s mother, and he intended to save it for her. Has frequently heard Tanner offer testator $7,000 00 for said property in gold, but he would not sell it because it was for Mary. In 1861, testator was diseased, feeble in health, walked bent over, and with a stick. He always had liquor about his house, and drank it. On the day after Mary’s first marriage he appeared to be mad with everybody; he was making a powerful fuss; he would walk forward and back through the house, going on at a terrible rate, making a noise. He seemed to be reckless for a week or two. He sent for witness a few days after Mary’s first marriage, and said he was ruined, and that he did not care to live a day longer, as Mary had run off. Said he would not give Price any property. Has heard him say that Mary was his favorite child; that he had bought her a piano, and had gone to great expense about her, and yet she had run off. Testator was opposed to Mary’s second marriage. Witness believes he was clerk of the Superior Court at the time, and that he had attested a paper executed by testator. (The reaffirmance of the deed of 1861.) Testator had mind enough to execute said paper, and acted voluntarily. Has seen him several times when he was not competent to attend to business. Does not think he was capable of transacting business when the deed of 1861 was executed.
    A. W. Turner testified as follows: Has frequently heard testator say that the land in controversy came by Mary’s mother, and he intended it for her. This conversation was *after the second marriage of testator, and after the birth of his daughter Eliza. Testator and witness would frequently go to testator’s house and take a jovial drink together and talk about said lot. On the day after Mary’s first marriage, he was crying, cursing and beating the ground with his stick. On the second day he was no better, and could be heard all over the town. Pie afterwards became reconciled to Price. On the day of the marriage, and the day after, testator was incapable, from drink and madness, of attending to business. Testator endeavored, by his indulgence to Mary, to wean her off from marrying. He obtained a considerable amount of property by his second marriage, but it did not go into his possession. Understood that complainant was the confidential adviser of testator. Never heard him talk about Eliza; he always talked about Mary.
    L. H. Turner testified as follows: Has heard testator say that the land in controversy came by Mary’s mother, and he intended it for her. On the day after her first marriage, saw testator in the street, knocking on the ground, stamping, knocking his hands and talking to himself. He said Mary had run away; that Tom Plarper stole her for Price; that he wanted to kill them all — Tom, Price and Mary — and then wanted somebody to kill him. Does not believe that he was competent to transact business. On the next day he was still carrying on in the same way.
    Defendants then introduced the depositions of Lucius Maxwell, the only material portion of which is the answer to the eighth interrogatory, to all of which complainant objected. The objection was overruled and complainant excepted.
    The answer is as follows: “When I saw, him (testator) in 1861, he told me that his daughter Mary had not married to please him. Pie stated to me at some time between 1861 and 1865, but at what particular time I do not remember, that Abel Lemon (complainant) wanted him to make a deed to his, Abel’s children, and remarked that the property which he wished deeded was obtained or came by his first wife, and asked my advise in the matter. I was present at a time within *the period named when Abel Lemon came in at the back way, and had some papers which he wanted Alexander Lemon to sign. Alexander Lemon declined doing so at the time, and Abel Lemon insisted on his signing, but I do not know what the papers were or if he signed them. They went into the house and left me in the veranda. Alexander Lemon afterwards came out and said that Abel Lemon wanted him to make, or he had made a deed to Abel’s children, I do not now remember which, but I do know that he did say, that he was not satisfied, or disposed to do as Abel Lemon would have him to do in the matter.”
    The jury returned the following verdict: “We, the jury, set aside the deed made to Eliza Lemon and. others, in the year 1861, by Alexander Lemon, and establish the deed made by Alexander Lemon in the year 1863, to Mary F. Price. We find enough of property in our judgment to pay all of the indebtedness of the estate, at the time this deed was drawn.”
    Whereupon complainant and the donees, under the deed of November 13th, 1861, moved for a new trial upon the following grounds, to-wit:
    1st. Because the Court erred in admitting in evidence the answer of Lucius Maxwell to the eighth interrogatory.
    2d. Because the Court erred in charging the jury, “that if the donor was laboring under monomania growing out of the marriage of his daughter, and the deed was the result of such monomania, at the time he executed the same, then the deed was void.
    3d. Because the verdict is contrary to the evidence.
    The motion was overruled and movants excepted upon each of the grounds aforesaid.
    D. J. Bailey ; J. J. Floyd ; George M. Noland, for plaintiffs in error.
    SpEER & Stewart; Peeples & Howell, for defendants.
    
      
      Deed — Improper Influence — Instruction.—See the principal case, Ency. Dig. Ga. Rep., vol. 4, p. 337.
      See the principal case referred to in Jenkins v. Nolan, 79 Ga. 296, 5 S. E. Rep. 34.
    
   *McCay,- Judge.

We do not think the testimony of Maxwell of much moment either way. The only objection to it is to its relevancy, and we are free to say that the case, with or without it, would, in our judgment, be about the same. Still, we cannot say it was irrelevant. It went to show, at least, that the deceased was in the habit of referring to his brother, that papers were sometimes pushed upon him by his brother, and that relations did exist between them calculated to cast suspicion upon a deed in the brother’s handwriting for the benefit of his own children.

The great question at last in this case is on the evidence. Whether the charge was right, depends upon whether there was eyidence of the insanity of the maker of the deed to Abel Lemon’s children at the time it was made, and if this evidence does exist, it was not an abuse of the discretion of the Judge to refuse a new trial.

The old common law rule that a man cannot stultify himself, like many other of the dogmatic, fanciful rules that seem to have been adopted in the early history of the common law, on certain abstract logical reasonings, has given way to a large extent in Courts of equity even in England, and is cut up by the roots in our Revised Code, séctions 2693, 2694, 2695. It is in this State simply a question of fact, with no logical obstruction to meet. Was the maker of the deed in such a condition of mind as rendered him incapable of making the deed ? It must be remembered that there was no consideration passed, and there is not, therefore, the technical difficulty of his having taken and kept the money or property of the grantee.

The deed was purely voluntary. It must be remembered, too, that this was not a will; for, in order to secure to a man the care and attention of those dependent upon him in his last days, the law keeps in his power the right to make a will, even when his capacity is less than would invalidate any contract or deed of gift he might make, to take effect immediately. *In looking closely into this testimony, we are not able to say that the evidence of the sanity of the maker of this deed is such as to show an abuse of discretion in the Judge in his refusal to set aside the verdict. We think there is a good deal of evidence to support the charge and the verdict. The man who would exhibit himself in the streets, as did this distressed and afflicted old man, who would make the night hideous with his cries, certainly presented some evidences of insanity. His determination to make a deed instead of a will, to cut down behind him the means of retreat, the consciousness thus displayed, that when his fury passed, other counsels might, and probably would, prevail, is itself an element of unsoundness of mind. How different from the counsel of the sage, to hold your hand when anger is upon you !

That this daughter had done wrong, had outraged her father’s affection, and that it was but just to punish her, dees not, as it seems to us, help the case. The very enormity of her offense, acting upon the peculiar temperament of this excitable old man, only makes it the more probable that it had, for the time, unhinged the intellect. Indeed, as the great dramatist of nature has shown, there is nothing so well calculated to run a man mad as the ungrateful conduct of a thankless child.

We feel with this jury that, a deed obtained under the circumstances, is not entitled to be treated as the free-will act of a sane man. Eor three or four days after his daughter left, it is plain he was wild with mortification, vexation, anger and grief. His mind was full of strange fancies, it was distempered, disturbed, distracted, and ready at times even to commit murder in its vagaries. And we do not think this is met by the proof that at the moment of this signing — this carrying into effect — of the mad fancies flashing through his disturbed and distracted mind - — he was calm in appearance. The act itself, and his statement then, that he wanted a deed and not a will, show that it was only on the surface that the calm existed, and that the full tide of distempered, insane rage and fury was still surging beneath. *Perhaps the language of the Judge in his charge is not strictly applicable to the facts: Technical insanity can,, perhaps, hardly be predicated of the condition of the mind of old Mr. Demon. But that state of mind which makes a man’s contracts void — whether it be insanity, distress, delusion, weakness, distempered fancy, or what not — can, we think, be fairly inferred. The act was the-act of a man not fairly at himself, not capable of dealing with the brother at his elbow, ready to put into the mouths of his own children the bounty his distracted brother, in his madness and fury, was casting away.

We will not disturb this verdict. The jury — the twelve neighbors of Mr. Abel Demon and his children — have, on their oaths, declared that the evidence satisfied them this old man was, at the making of the deed, not in a condition to make a contract, and we think there is evidence enough in the record to justify them in this declaration.

Judgment affirmed.  