JOHNSON, Judge,
delivered the opinion of the Court:
Much interest having been taken in these causes, by the parties interested, and the causeshaving been re-submitted to the Court, and the able counsel on both sides having, with much earnestness and ability, contended for what, they believed under the law and facts of the causes they were entitled to, I have endeavored, in the lengthy statement of the case, to so set out the substance of the evidence on both sides, touching the capacity of the grantor, as will illustrate the principles of the [626]*626opinion, and justify me in the conclusions to which I have come.
The folloAving well-settled principles present themselves in these causes, and will guide us in a proper decision thereof:
Mere inadequacy of consideration is not in itself sufficient to justify a court of equity in setting aside a deed.
Old age is not in itself sufficient evidence of incapacity to make a deed.
The point of time to be looked to by the court or jury, in determining the competency of a grantor to make a deed, is that when the deed was executed.
The condition of the grantor’s mind, both before and after the execution of the deed, is proper to be considered, in determining what was his mental condition, at the time the deed was executed.
It requires, more capacity to make a valid deed, than it does to make a will.
The presumption of law is always in favor of sanity, at the time the deed was executed, of a person whose deed is brought in question; and the burden of proof then lies upon the person who asserts unsoundness of mind, unless a previous state of insanity has been established ; in which case the burden is shifted to him who claims under the deed : Hall v. Warren, 9 Ves. 605.
The evidence of witnesses present at' the execution of the deed are entitled to peculiar weight.
The evidence of physicians, especially those who attended the grantor, and were with him considerably during the time it is charged he was of unsound mind, is entitled to great weight; next to physicians and those who were present, either as attesting witnesses or otherwise, at the time the deed was executed, are those whose intimacy in the family has given them an opportunity of seeing the party at all times, and watching the operations of his mind. Of course it is understood, that in the weight to be given to the testimony of the different classes of witnesses, we have here enumerated, that [627]*627tbe witnesses themselves have no discredit cast upon them, eitherjin cross-examination, the circumstance they detail or in any other way. But the mere opinions of witnesses not experts are entitled to little or no regard, unless they are supported by good reasons, founded on facts which warrant 'them ; and if the reasons and facts upon which they are founded are frivolous, the opinions of such witnesses are worth but little or nothing: McDaniel’s Will, 2 J. J. Marshall 331; Sloan v. Maxwell, 2 Green Ch. 563; Beverly v. Walden, 20 Gratt. 147.
Where a legal capacity is shown to exist in the grantor, and he had sufficient understanding to clearly comprehend the nature of the business, and he consented freely to the special matter about which he was engaged, and no fraud or undue ^influence is shown to have been had to bring about the result, the validity of the deed cannot be impeached: however unreasonable, imprudent or unaccountable it may seem to others. It is not the propriety or impropriety of the disposition, but the capacity to make it, and the fact that it was freely made, with the full assent of the grantor, that must control the judgment of the court: Greer v. Greer, 9 Gratt. 330. It is the duty of an appellate court, in reviewing a decree founded on the verdict of a jury, rendered on an issue out of chancery, to look to the state of the proofs at the time the issue was ordered; and if satisfied that the chancellor had improperly exercised his discretion in directing the issue, to render a decree notwithstanding the verdict, according to the merits, as disclosed by the proofs, on the hearing when the issue was ordered. Smith’s adm’r. v. Betty et al., 11 Gratt. 760, and cases there cited. It is true that the chancellor may, in the exercise of his discretion, either direct an issue or refuse to do so; but this discretion must be properly exercised, and a mistake in its exercise is just ground of appeal. Wise v. Lamb, 9 Gratt. 294. Beverly v. Walden, 20 Gratt. 154. Where the evidence is conflicting, or there is contradictory evidence between persons of equal [628]*628credit, and equal means of information, and the evidence ' is so equally balanced that it becomes doubtful which scale preponderates, an issue will be proper: Ibid 309.
• There are certain excepted cases referred to by Judge Lee in his opinion in Wise v. Lamb, not governed by the above rule; but this case is not one of them.
I do not desire to go outside of the Virginia and West Virginia authorities on this subject. There is an unbroken line of authorities on the subject in Virginia, all before the separation, being part of the law of this State, are as binding on this Court as its own decisions. The principles of the Virginia decisions on the subject, have been approved in Powell v. Batson, 4 W. Va., 610: Henry v. Davis, 7 W. Va., 715; Nease v. Capehart, 8 W. Va., 95, and Arnold v. Arnold, supra.
As I understand the authorties in Virginia and this State, and they are not in conflict with the general current of decisions, where there is such a conflict of evidence, that it is so nearly balanced, as to make it doubtful, on which side is the preponderance, an issue ought to be directed; and where, though there be a conflict, but not of such a character, no issue should be directed ; and if it is improperly directed in the one case or refused in the other, such mistake by the chancellor in the exercise of his discretion will be corrected on appeal. Such doubt in the mind of the chancellor must not be a factitious, but a reasonable one, justified by such conflict of the evidence. It sometimes happens that in particular cases, where fraud is charged, for instance, and there is much contention between parties in the neighborhood, and many have taken sides in the contest, that the Judge is tempted to evade the responsibility the law imposes on him, by submitting the question to a jury. No such evasion can be tolerated; it is the right of the parties litigant to have the judgment of the chancellor upon the subject; and one side or the other in exciting cases, might be unjustly injured by undue pressure being brought [629]*629to bear upon the jury; and it is only under the circumstances, we have indicated, that the judge is permitted to" escape the responsibility of a decision by directing an issue. After an issue has been directed and the jury have found a’verdict, it is not often that a judge will decree the other way, although he may do so. It is argued by plaintiffs( counsel, that section 4 of chapter 131 authorizes a court of equity to direct an issue in any case. The section is as follows:
“A circuit court, wherein a chancery’case is pending, may direct an issue to be tried in such court, or in any other circuit court.”
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JOHNSON, Judge,
delivered the opinion of the Court:
Much interest having been taken in these causes, by the parties interested, and the causeshaving been re-submitted to the Court, and the able counsel on both sides having, with much earnestness and ability, contended for what, they believed under the law and facts of the causes they were entitled to, I have endeavored, in the lengthy statement of the case, to so set out the substance of the evidence on both sides, touching the capacity of the grantor, as will illustrate the principles of the [626]*626opinion, and justify me in the conclusions to which I have come.
The folloAving well-settled principles present themselves in these causes, and will guide us in a proper decision thereof:
Mere inadequacy of consideration is not in itself sufficient to justify a court of equity in setting aside a deed.
Old age is not in itself sufficient evidence of incapacity to make a deed.
The point of time to be looked to by the court or jury, in determining the competency of a grantor to make a deed, is that when the deed was executed.
The condition of the grantor’s mind, both before and after the execution of the deed, is proper to be considered, in determining what was his mental condition, at the time the deed was executed.
It requires, more capacity to make a valid deed, than it does to make a will.
The presumption of law is always in favor of sanity, at the time the deed was executed, of a person whose deed is brought in question; and the burden of proof then lies upon the person who asserts unsoundness of mind, unless a previous state of insanity has been established ; in which case the burden is shifted to him who claims under the deed : Hall v. Warren, 9 Ves. 605.
The evidence of witnesses present at' the execution of the deed are entitled to peculiar weight.
The evidence of physicians, especially those who attended the grantor, and were with him considerably during the time it is charged he was of unsound mind, is entitled to great weight; next to physicians and those who were present, either as attesting witnesses or otherwise, at the time the deed was executed, are those whose intimacy in the family has given them an opportunity of seeing the party at all times, and watching the operations of his mind. Of course it is understood, that in the weight to be given to the testimony of the different classes of witnesses, we have here enumerated, that [627]*627tbe witnesses themselves have no discredit cast upon them, eitherjin cross-examination, the circumstance they detail or in any other way. But the mere opinions of witnesses not experts are entitled to little or no regard, unless they are supported by good reasons, founded on facts which warrant 'them ; and if the reasons and facts upon which they are founded are frivolous, the opinions of such witnesses are worth but little or nothing: McDaniel’s Will, 2 J. J. Marshall 331; Sloan v. Maxwell, 2 Green Ch. 563; Beverly v. Walden, 20 Gratt. 147.
Where a legal capacity is shown to exist in the grantor, and he had sufficient understanding to clearly comprehend the nature of the business, and he consented freely to the special matter about which he was engaged, and no fraud or undue ^influence is shown to have been had to bring about the result, the validity of the deed cannot be impeached: however unreasonable, imprudent or unaccountable it may seem to others. It is not the propriety or impropriety of the disposition, but the capacity to make it, and the fact that it was freely made, with the full assent of the grantor, that must control the judgment of the court: Greer v. Greer, 9 Gratt. 330. It is the duty of an appellate court, in reviewing a decree founded on the verdict of a jury, rendered on an issue out of chancery, to look to the state of the proofs at the time the issue was ordered; and if satisfied that the chancellor had improperly exercised his discretion in directing the issue, to render a decree notwithstanding the verdict, according to the merits, as disclosed by the proofs, on the hearing when the issue was ordered. Smith’s adm’r. v. Betty et al., 11 Gratt. 760, and cases there cited. It is true that the chancellor may, in the exercise of his discretion, either direct an issue or refuse to do so; but this discretion must be properly exercised, and a mistake in its exercise is just ground of appeal. Wise v. Lamb, 9 Gratt. 294. Beverly v. Walden, 20 Gratt. 154. Where the evidence is conflicting, or there is contradictory evidence between persons of equal [628]*628credit, and equal means of information, and the evidence ' is so equally balanced that it becomes doubtful which scale preponderates, an issue will be proper: Ibid 309.
• There are certain excepted cases referred to by Judge Lee in his opinion in Wise v. Lamb, not governed by the above rule; but this case is not one of them.
I do not desire to go outside of the Virginia and West Virginia authorities on this subject. There is an unbroken line of authorities on the subject in Virginia, all before the separation, being part of the law of this State, are as binding on this Court as its own decisions. The principles of the Virginia decisions on the subject, have been approved in Powell v. Batson, 4 W. Va., 610: Henry v. Davis, 7 W. Va., 715; Nease v. Capehart, 8 W. Va., 95, and Arnold v. Arnold, supra.
As I understand the authorties in Virginia and this State, and they are not in conflict with the general current of decisions, where there is such a conflict of evidence, that it is so nearly balanced, as to make it doubtful, on which side is the preponderance, an issue ought to be directed; and where, though there be a conflict, but not of such a character, no issue should be directed ; and if it is improperly directed in the one case or refused in the other, such mistake by the chancellor in the exercise of his discretion will be corrected on appeal. Such doubt in the mind of the chancellor must not be a factitious, but a reasonable one, justified by such conflict of the evidence. It sometimes happens that in particular cases, where fraud is charged, for instance, and there is much contention between parties in the neighborhood, and many have taken sides in the contest, that the Judge is tempted to evade the responsibility the law imposes on him, by submitting the question to a jury. No such evasion can be tolerated; it is the right of the parties litigant to have the judgment of the chancellor upon the subject; and one side or the other in exciting cases, might be unjustly injured by undue pressure being brought [629]*629to bear upon the jury; and it is only under the circumstances, we have indicated, that the judge is permitted to" escape the responsibility of a decision by directing an issue. After an issue has been directed and the jury have found a’verdict, it is not often that a judge will decree the other way, although he may do so. It is argued by plaintiffs( counsel, that section 4 of chapter 131 authorizes a court of equity to direct an issue in any case. The section is as follows:
“A circuit court, wherein a chancery’case is pending, may direct an issue to be tried in such court, or in any other circuit court.”
This section of the Code clearly does -not change the general chancery practice as to the direction of issues. It only specifies where the issue may be tried in the circuit court that directs it, or in any other circuit court it may designate. It is also contended by counsel for ap-pellees, that by the 59th section of chapter 125 of the Code the effect formerly given to an answer is destroyed. This is intended to meet the arguments of appellants’ counsel, founded on the following language of Judge Christian, in Beverly v. Walden, supra 154: “When the allegations of the bill, are positively denied by the answer, and the plaintiff has failed to furnish two witnesses, or one witness, and strong corroborating circumstances, in support of the bill, it is error in the chancellor to order an issue; that no issue should be ordered until the plaintiff has thrown the burden of proof on the defendant; that until the onus is shifted and the case rendered doubtful by the conflicting evidence of the opposing parties, the defendant cannot be deprived, by an order for an issue, of his right to a decision by the court on the case, as made by the pleadings and proofs.” If the onus were shifted, still it would not be proper to direct an issue, unless “the case is rendered doubtful by the conflicting evidence of the opposing parties.”
Section 59 of chapter 125, is as follows:
[630]*630“When a defendant in equity shall in his answer deny any material allegation of the bill, the effect oí such denial shall only be to put the plaintiff on satisfactory proof'of the truth of such allegation; and any evidence, which satisfies the court or jury of the truth thereof, shall be sufficient to establish the same.”
■ Under this section of the Code it is true, that the effect an answer formerly had, as held in many cases in Virginia, is destroyed; its only effect now is to put the plaintiff on proof of his case, when all the allegations are denied, or on proof of such parts as are denied. It is no longer necessary to have two witnesses, or one witness, and strong corroborating circumstances, to overthrow an answer in response to the bill; it may now be overthrown by any proof, that satisfies the court or jury of the truth of the bill. But this does not change the rule we have laid down governing courts in directing issues.
It is argued with confidence in their brief Tby counsel for appellees, that: “An appellate court will not reverse the decree of the court below, because an issue has been directed, if there he a conflict of testimony, although after analyzing and weighing the testimony, it may differ with the inferior court as to the effect of the evidence. Then to determine whether the decree should be reversed, it is necessary to ascertain whether there be a conflict of evidence; this is the sole question for the consideration of the appellate court; if there is such a conflict, then, whatever may be the opinion of the court as to the preponderance of testimony, the decree of the inferior tribunal nrnst stand.” In effect, it is contended that, if there is a conflict of testimony in the cause, and the inferior court directs an issue, it cannot be inquired into in the appellate court, whether there was such a conflict of testimony, as made the question a doubtful one. This position is wholly untenable; it reverses all the authorities in Virginia on the subject oí directing ' issues; it is in effect to say that in almost any chancery [631]*631cause, where two Or three witnesses have sworn one way on one side, and one witness of the same credit, testifies to the reverse, there being a conflict of testimony, the court may direct an issue. If this be law, we might as well abolish our chancery courts at once, or wipe out the line that separates them from courts of law.
According to the principles above declared should the circuit court of Greenbrier county have directed the issue in these causes ?
At the time the issue was directed, the court did not think it necessary to direct any inquiry as to fraud or undue influence being practiced upon Mr. Jarrett. The fraud charged in the bills is denied by the answers, and I think there is no evidence of fraud in the record; there are no circumstances proved from which fraud could be satisfactorily inferred. There is no evidence in the record as to any of the defendants importuning old Mr. Jarrett to execute the deeds, or either of them, unless it may be the evidence of Rosanna Arga-brite, and unless it may be gathered from the circumstances, which, to my mind, are wholly insufficient to sustain that charge in the bill. There is certainly no evidence in the ' cause that said deeds, or either of them, was procured by undue influence. I do not deem it necessary’to discuss the question of inadequacy of consideration; there is evidence in the record tending to prove, that the lands sold for near ivhat they were worth; but the weight of evidence is, that they were worth much more than they were sold for. But it is well settled, that mere inadequacy of consideration is not sufficient to justify a court of equity in cancelling a deed or contract. The question submitted was, whether at the time of the execution of the two deeds dated March 24, 1868, and also the deed to Samuel Leonard, dated July 23, 1867, the said James Jarrett was mentally capable of making said deeds, or either of them: and if either of them and not the other, which one. How stood the proof on this question at that time ?
In the extended statement of the case, I have not given [632]*632a synopsis of any evidence except that bearing upon this " question. If upon the proofs at that time, the evidence was so conflicting that it was so nearly balanced as to make it doubtful on which side was the preponderance, then the issue was proper; but if such was not the case, it was the duty of the chancellor to have rendered his decree on the proofs as they then stood.
The witnesses, whose depositions were taken in the cause, may be divided into four classes:
1st. Those who gave merely opinions as to the mental capacity of the grantor, and gave no reasons therefor.
2d. Those who gave opinions, and their reasons therefor.
3d. Physicians.
4th. Witnesses present at the execution of the deeds.
The number of witnesses who were examined as to the capacity of the grantor to execute the deeds, was nearly sixty, of whom about forty were examined for the plaintiffs, and about twenty tor the defendants. Quite a number of witnesses on both sides gave their opinions, not based on any, or on very frivolous reasons therefor; and their testimony is not entitled to much, if any weight. If the cause stood alone upon the testimony of Mrs. Ar-gabrite and Dr. Clay, all the deeds would have to be cancelled. But they both prove too much. Mrs. Ar-gabrite is just as positive that her father, the grantor, was not capable of executing a deed in 1862, as she was that he was not competent to execute the 'deeds to her brothers, James and Samuel, in 1868. On cross-examination she throws discredit on her whole testimony, and it seems to me, gives the reason yphy her opinion is so strong.
This question was propounded to her: “You say that from 1862 to the day of your father’s death, you do not think he was capable of transacting business; did he not transact a great deal of business during that time ?” She answered: “Yes, sir, he did, and he did it satisfactorily with honest people, but at other times I [633]*633was not so well satisfied with it.” That is, he was capable to transact business with honest people, but' not with dishonest ones; he was capable, but a dishonest person might take the advantage of him. During this period she had made a contract with her father to live with him and take care of him at the price of $1,000.00 per year, and at the time doubtless thought him capable of making such a contract; but when she thought he had sold the land to her brothers James and Samuel, too cheaply, she “ was not so well satisfied with it.” Dr. Clay became a good deal entangled during his cross-examination. He says, “ according to his opinion his (Mr. Jarrett’s) mind was in a state of imbecility previous to 1863, and it became worse afterwards.” Then he must have been imbecile in 1862 according to Dr. Clay. But while Dr. Clay and Mrs. Argabrite both say that long prior to July 23, 1867, when the deed to Samuel Leonard was executed, he was incapable of transacting any business; yet H. M. Mathews, who wrote the said deed, in Mr. Jarrett’s presence and at his request, eight months before the deeds to Samuel and James Jarrett were executed, in answer to a question, said: “ I thought of course he was in a condition to make, and capable of making, the deed.”
With the exception of the evidence of Mrs. Argabrite, there is very little in any of the reasons given by witnesses as the ground of their opinions, that tended to show that Mr. Jarrett was not of sound mind.
Two physicians testified for the plaintiffs. I have spoken of the testimony of the son-in-law, Dr. Clay; the other was Dr. Prickett, who deposed that, in his opinion, Mr. Jarrett was not competent to transact business of any great importance; says he was not very well acquainted with him; made him two professional visits in the summer of 1867; he gives the learned opinion that “ the mind sympathizes with and shares the weakness and decline of body incident to extreme old age; thought that all men, pretty much, when they arrived at [634]*634Mr. Jarrett’s age,are of feeble mind; tbattbe mind does ' suffer with the body; ” and tbis is all the reason he has for thinking him incompetent to transact business. There are many cases of men who were as old as Mr. Jarrett, and much older, whose contracts were never questioned, and many cases in the books, where the contracts, deeds and wills of such old men have been sustained.
Dr. Creigh was well acquainted with Mr. Jarrett, and in the latter part of August or first of September 1868 saw him frequently; was his physician in 1866, 1867 and 1868; talked with him, and he says he “never saAv him when he did not have entire possession of his faculties, and was uniformly struck with the clear and concise manner, in which he expressed ’ his feelings and sensations.
Dr. Rupert and also Dr. Caldwell testified to his mental capacity.
The weight of the medical testimony is clearly in favor of the grantor’s capacity.
The testimony of those present at the execution of the deeds is entitled to peculiar weight.
Mr. blandly the surveyor details facts and. circumstances, that show a mind capable of transacting very important business. He went to his place to survey for him in February 1868, and he had the deeds of his tracts of land on his desk; described the lines to the surveyor ' with particularity : told him he wanted a connected survey made, and how to make it; just where the lines would run, and the surveyor found that his description was correct : he told him he was going to sell his lands to his son James; that he wanted him (James) to live with him; the surveyorjjwas with him some time, and his mind was clear. When he came to his house in March 1868, James was there, also Samuel; the old gentleman seemed indisposed to do anything; Samuel was dissatisfied because the land was all going to be sold to James, he [635]*635wanted a part of it; the other children were objecting to the sale, or a part of them were; he evidently wanted' James to have the land, but wanted Samuel satisfied; when Samuel had made an arrangement with James to take part of the land, and expressed his satisiaction, the old man was also satisfied and signed the deeds. James H. Arbuolde was in his room the day the deeds were written ; he talked with him. He says: “ I thought he was just as much at himself as I ever had seen him; whether he was in a fix to make a contract or not, I don’t know ; he ivas talking the common news of the neighborhood, and made many inquiries of me.” On the 26th of March 1868 Mr. Jarrett acknowledged the deeds before S. R. Huffman, a justice of Greenbrier county, and he says he Avas then capable of understanding a deed, he had some conversation with him, “he .appeared to be perfectly rational.”
On the whole testimony I think the preponderance of the testimony, at the time the issue was directed, Avas clearly in favor of the capacity of James Jarrett on the 24th and 26th days of March 1864 to make the deeds to James Jarrett and Samuel Jarrett, respectively, and that the said issue ought not to have been directed, and that therefore there is error in the decree pronounced in these causes on the 16th day of June 1873, directing the issue, andjalso in the decree of the 26th day of November 1873, setting aside and annulling said deeds respectively; and the said decrees are reversed with costs in each of said suits respectively to the appellants against the appellees, and this court proceeding to render such decree as the circuit court should have rendered, it is, notwithstanding the verdict of the jury, adjudged, ordered and decreed, that in these suits respectively, the complainants’ bills be dismissed, and that the defendants in each of said suits recover of the plaintiffs their costs about their defense expended.
Judges Green and Haymond concurred. Moore, [636]*636Judge, concurred in the points adjudicated, but thought this a proper case for the direction of an issue out of chancery.
Decebe Reversed.