
    CHARLES W. HARMON vs. HORACE S. JOHNSTON and JOHN R. MCCONNELL.
    In Equity.
    No. 2182.
    It is sufficient to set aside a deed or contract on. account of drunkenness if the party executing it be incapable of understanding its terms and conditions. It is not necessary to prove an entire loss of reason, or that the party was entirely demented by drink, in order to avoid it, but the act will be rendered void if the party was in such a condition of mind that he could not comprehend what ivere the terms and conditions of the instrument.
    STATEMENT OF THE CASE.
    This was an issue sent down by the justice holding the equity term to be tried by a jury at the circuit. The bill in the equity cause was filed to enjoin the sale of certain property belonging to the complainant therein, -under a deed of trust which he had executed to the defendant McConnell, to secure the payment of two certain promissory notes, dated February 3, 1871, made by Z. Whittemore & Kiernan to the other defendant, Johnston. The property consisted of two houses and the land on which they stand. Among the grounds on which the injunction is asked by complainant, one reads as follows :
    “5. That on the day, and before the time of executing the deed, and for several days prior thereto, he had been using-intoxicating liquors to excess; that he was not addicted to their use; that he is informed by his friends, and verily believes, he was intoxicated at the time of signing said deed ; and that the defendants, knowing such to be his condition, took advantage of it to persuade him to sign said deed.”
    And in an amended and supplemental bill the complainant alleges that—
    “ When he executed the said deed and notes, he was so drunk that he did not know what he was doing, and did not know that he was making his said property liable for the payment of said notes, or that he was incurring any obligation to pay them.”
    
      The defendant answered, and the issue to he tried by the jury is stated by the court in the following language:
    “ Whether or not the plaintiff was, at the time of the execution of the deed of trust and notes mentioned in the bill of complaint in this cause, capable of executing a valid deed or contract.”
    At the trial, the plaintiff offered evidence tending to prove that before, at, and after the time of making said deed and notes, he, the said plaintiff, was in the habit of using intoxicating liquors to excess, and was more or less under the influence of such stimulants all the time. That at the date of said deed he had been drinking freely, and several witnesses testified that they did not consider him fit to do business. Kiernan and Whittemore, the makers of the said notes, secured by the deed of trust, and one other witness, testify that they were present at the making of the deed, &c., and that Harmon was very drunk — so drunk that they did not consider him fit to transact business, or capable of executing a deed or contract.
    Dr. Riley testified that Harmon was suffering under a disease called alcoholism, a disease of the brain and nerve centers, and was in such a condition that he would not make a contract with him, and that he was not competent to- contract at the time of making the deed, and that he saw him almost daily, about that time, and that he was then laboring under alcoholism.
    On cross-examination he stated that he observed this disease in September following the execution of the deed, and said that he did not make a contract with Harmon because on account of the effects of his intemperance he did not want him to do his work. Other witnesses testified to the end that the plaintiff was not in condition to do business, and to the effect that he was very drunk on the day of the execution of the deed and for some time prior thereto.
    And the plaintiff rested.
    The defendant offered the evidence of McConnell, who drew the deed and notes, tending to prove that Harmon came to his office with Johnston, Kiernan, and Whittemore, to have the deed prepared; that he, the witness, said that he must have Harmon’s deed to obtain the description of the property; that Harmon said he had not taken it out of the recorder’s office, and that Johnston suggested to him at the time that they go to the record-office and get the deed, and that they went and came back with the deed. That he prepared the deed, read it once to Harmon at his request, and explained it to him, and he expressed himself satisfied with it, and he signed the deed, whereupon the deed and notes were given to Johnston.
    The same witness and Mr. McNamee, who received Harmon’s acknowledgment of the deed, both testified that in their opinion Harmon was sober when they saw him sign and acknowledge the said deed, and that they would not have permitted him to make or acknowledge any paper if they had thought he was drunk.
    Evidence was also given tending to prove that Harmon said nothing of the deed being invalid because of his drunkenness till some time after the property was sold, and also that about six weeks after the deed was executed he signed a paper, which was put in evidence, agreeing to the assignment of the lease for which the notes secured by the deed of trust were given.
    ■ It was also proved that McConnell and Johnston were entire strangers up to the date of this transaction.
    And the defendant rested.
    The second and third instructions which the defendant prayed the court to give to the jury are all that is material to an understanding of the case, and are as follows:
    “2. To set aside a deed or contract on account of drunkenness, it is not sufficient that the party is under undue excitement from liquor. It must rise to that degree which may be called excessive drunkenness, where the party is utterly deprived of his reason and understanding.
    “3. The jury must find for the defendants, unless they believe that the plaintiff was in such a state of intoxication as not to know what he was doing when he signed the deed in controversy.”
    The court held that if the word “utterly,” in the 2d prayer, intended to express an entire loss of reason in all respects, that it was not good law; but if it meant that the defendant-must be incapable of understanding the terms and conditions of the deed of trust, iu order to avoid it, then it was good law, and so modified it was given to the jury.
    The 3d and 4th prayers were granted, subject to the following modification: that it was not sufficient to make the deed a valid one for the defendant to know that he was signing a deed of trust on his own property, but he must have been in such a condition of mind as to be able to know and understand the terms and conditions of said deed. It is not necessary, in order to render the deed of the defendant invalid, that, at the time of its execution and acknowledgment, he was entirely demented by drink, but his act will be rendered void if he was in such a condition of mind that he could not comprehend what were the terms and conditions of the instrument.
    The defendant excepted to these modifications. The justice holding the equity term on the hearing of these exceptions overruled them, and the defendant appealed to the general term.
    
      Riddle & Miller for appellant:
    The court erred in refusing the instructions asked for by the defendant. The second instruction is the exact language of Judge Story. (1 Story’s Eq. Jur., § 231.) And this opinion is sustained by all the authorities, without exception, so far as a somewhat extended research has discovered them. (3 Piere Williams, 131, Osmond vs. Fitzroy, Note A; Jeremy’s Eq. Jurisdiction, 392; Willard’s Eq. Jurisprudence, 200-1, 196; 1 Maddox’s Chancery, 300-1-2; Story on Contracts, § 44-6; 6 Harris & Johnson, 443, Watkins vs. Stockett; Wilson vs. Watts, 9 Md., 439 and 457; 1 Bibb’s R., 406, Campbell vs. Ketchum; Ray’s Medical Jurisprudence of Insanity, § 529.)
    
      M. Thompson for appellee Harmon:
    The deed of trust is a contract consisting of “ terms and conditions;” and if, from “ alcoholism” or any other cause, Harmon had not sufficient mind to understand these terms and conditions, then he was not capable of executing a valid deed or contract.
    
      He might have had sense enough to drive a jack-plane or a cart, or even to make a will, and yet 'not be capable of understanding the terms and conditions of this deed of trust. (1 Pars, on Contracts, 387 ; 1 Red. on Wills, 128, 129, 130, 131; 12 Law Register, August, 1873, page 531.)
   By the Court:

A majority of the judges are of opinion that there was no error in the instructions given by the court to the jury.

Judgment affirmed.

Mr. Justice MacArthur dissenting.  