
    Odell vs. Buck and others.
    
      Imbecility of mind, not amounting to lunacy or idiocy in the grantor of land, is not sufficient to avoid his deed, where, in the obtaining it, there is no fraud.
    
    The doctrine -on this subject, laid down in Jackson v. King, 4 Cowen, 207, approved and adopted.
    This was an action of ejectment, tried at the Delaware •circuit in May, 1838, before the Hon. John P. Cushman, one of the circuit judges.
    The plaintiff claimed under a deed to him from Levi Buck and his wife, dated March 29, 1830. The defence ■jyas, that Buck, at the time the deed was given, was incompetent to contract on the ground of idiocy or insanity. The charge of the judge was .unexceptionable, and the jury found a verdict for the defendants, which the plaintiff now moves to set.aside, as against evidence.
    
      L. Monson, for the plaintiff.
    
      M. T. Reynolds, for the defendants.
   By the Court,

Bronson, J.

From the evidence, it satisfactorily appears that Buck, at the time the deed was executed, was not a 'lunatic, or one who had lost the use of that reason or understanding which he once had. His capacity for business was then very much the same that it had always been, though possibly his mental energy had diminished a little. He was riot an idiot, or “ one that hath no understanding from his nativity.” Although a man of imbecile mind, he had reason and understanding.

Fraud was not set up as a ground of avoiding the deed, but the case turned wholly on the incapacity of the grantor to contract. This question was fully considered in Jackson v. King, 4 Cowen, 207. According to the doctrine of that case, it is impossible to say that this deed was void. No part of the evidence goes far enough to show a total want of understanding; and most of the evidence proves quite the contrary. He made contracts of several descriptions, and with such care and caution as evinced considerable mental energy. He had been at school, and learned to read and write j he performed military duty ; was a member of a religious society; was married by the clergyman of that society a few months before the deed was executed; he appealed to the law for the vindication of his rights. He was a man of w.eak mind, but neither a lunatic nor afool.

Following the case of Jackson v. King, I think we are bound to set aside the verdict as against evidence, on payment of costs.

New trial granted.  