
    SOLOMON HARKEY, Adrn’r of CATHARINE HARKEY, vs. JACOB HARKEY.
    Where upon a bill to set aside a deed obtained by a son from an aged mother, on the ground of fraud, imposition and incapacity of the gran- ,. tor, the court decided there was not proof to support the allegations, and therefore they dismissed the bill, yet they dismissed it without costs, because suspicions were excited by some part of the testimony f,. as to the fairness of the defendant’s conduct in procuring the deed.
    This was a bill filed in Cabarrus Court of Equity, in July, 1838, to set aside a deed for negroes, executed in the year 1825, by the plaintiff’s intestate to the defendant, who was one of her sons. The grounds alleged for this relief werethe incapacity of the intestate, and fraud and imposition on the part of the defendant. The defendant denied the fraud, imposition and incapacity imputed by the bill, and averred that there was a fair and bona fide consideration for the deed, which he set forth in his answer. He also relied upon the lapse of time from the date of the deed to the filing of the plaintiff’s bill. Replication having been made and depositions taken, the cause was set for hearing, and at Spring Term, 1841, removed, on, the affidavit of the plaintiff, to the Supreme Court. The testimony was voluminous and need not be here inserted, as the court decided it to be insufficient, in point of fact, to sustain the plaintiff’s bill.
    The case was argued at length, with great zeal by the counsel on both sides, and the reporter regrets he has not room to insert their arguments.
    
      W. J. Alexander and D. M. Barringer for the plaintiff.
    
      D. F. Caldwell for the defendant.
    As to the degree of incapacity, required to avoid a deed, the plaintiff’s counsel cited Buff alow v. Buff alow, 2 Dev. & Bat. 241. Griffiths v. Robins, 3 Mad.[Ch, Rep. 191. Clark-son v. Hanway, 2 Peere Wms. and the cases there cited. Mad.' Ch. Prac. vol. 1st, p. 280, 281. Harding v. Handy, 6 Con-den. Ch. Rep. 286. Bridgman v. Green, Wilmot’s Cases, 61. Chesterfield v. Jansen, 2 Yes. 155. Whelan v.- Whelan, 3 Cowen, 537. Huguenin v. Basely, 14th Yes. 273.
    As to the operation of the length of time in a case like this, they cited Purcell v. McNamara, 14 Yes. 91. Aylward v. Kearney, 2 Ball & Beatty, 463. Medlicott v. O'Donnell, 1 Ball & Beatty, 166. Alden v. Gregory, 2 Eden, 280,285. Pickering v. Lord Stamford, 2 Yes. jr. 280. Booth v. Lord Warrington, 1 Bro. Ch. Ca. 455. Butler v. Haskill, 4 Dessaussure, 707. Mad. Ch. Pr. 1 Yol. 256. 1 Fonbl. Eq. 333. Edwards v. University, 1 Dev. & Bat. Eq. 325.— Blue v. Patterson, 1 Dev. &. Bat. Eq. 457. 1 Yes. jr. 160, 328. Roche v. O'Brien, 1 Ball & Beatty, 330. Gotaland v. DeFaria, 17 Yes. jr. 20. Hatch v. Hatch, 9 Yes. jr. 292.
    
      Caldwell for the defendant,
    as to the degree of incapacity, cited Fonbl. Eq. 1 Book, 2 ch. 3 sec. Lewis v. Peed, 1 Yes. jr. 19. 1 Story’s Eq. 239, 245. As to the lapse of time, 2 Sch. & Lef. 630. Edwards v. University, 1 Dev. & Bat. Eq. 325. Gatlin v. Barden, 1 Dev. & Bat. Eq. 74. Cain v. Bloodgood, 7 Johns. Ch. Rep. 90. Hoveden on frauds, L vol. p. 23.
   Daniel, J.

This bill was filed in 1838, to set aside a deed executed by the intestate to the defendant, in the year 1825, conveying all her dower and personal estate, then of the value of eight or nine hundred dollars. The bill charges, that at the time the .deed was executed, Catharine Harkey, was, from her great age and imbecility of mind, incapable of making a contract or disposing of her property; and that the defendant, well knowing the same, by artful and fraudulent contrivances, procured her to execute to him the said deed. The prayer is, that the deed be set aside, and that the defendant be decreed to account. The defendant in his answer admits, that his mother, Catharine Harkey, was a very old woman, when she executed the said deed to him. But he denies, that she labored under such mental imbecility, as not to be able to make contracts. He avers that she well understood what she did. He denies any fraud on his part, or artful contrivance to procure the said deed. He says, that his mother, after advancing three of her other children with a slave each, was left possessed of dower in a small tract of of land much worn by cultivation, a negro woman, and three small children, a very small live stock, and some household furniture: That she agreed to convey the same to him, in consideration of his taking care of her and maintaining her the balance of her life : That upon these considerations she executed the said deed, and he executed to her a covenant for maintenance, and that the negro woman should at all times wait on her, and that he would pay $150 to three of her other children. All which covenants, he says, he has faithfully executed. He further sayeth, that his mother lived ten years after the date of the deed; and that she was palsied for four or five years before her death, and required almost constant nursing and attention by him or some of his family. The plaintiff has replied to the answer. There has been a good deal of testimony taken in this cause. On examining it, some suspicions are raised as to the fairness of the defendant’s conduct in getting the deed. But, neverthe. less, we are compelled to say, from the whole evidence, that .the plaintiff has not established the case stated in his bill. It appears that Catharine Harkey was an illiterate, ill-natured and fractious old woman. But the evidence proves that she had mental capacity sufficient to make a good and legal contract — and that the writer of the deed (a man of great respectability) explained to her at the time the contents and the legal effect of the deed. She then, it appears, freely executed the deed. From the date of the deed, (1825,) up to the year 1831, she continued in the constant practice of a midwife in the neighborhood, and during that time made no attempt to impeach the transaction. From that time, (1831,) to her death, she was palsied, and required constant attention and waiting on. It is in proof by two witnesses, that the maintenance and trouble to which the defendant had been put, was worth the property conveyed to him in the deed-We are of the opinion, that the bill must be dismissed, but without cost.

Pjtr Curiam, Bill dismissed, without'costs.  