By the Court. —
Lumpkin, J.,
delivering the opinion.
After carefully investigating the facts in this case, we are forced to the conclusion, that the verdict of the jury is strongly and decidedly against the weight of evidence. We shall not, however, enter upon a review of the testimony to demonstrate the correctness of this result. The proof spea.ks for itself.
W.e prefer stating some general principles applicable to this investigation, and then submit it to the reconsideration of another jury, disclaiming all wish or intention to constrain them to a finding which their own judgments do not approve.
I assume, in the first place, that to establish incapacity in a grantor, he must be shown to have been, at the time, non compos mentis, in the legal acceptation of that term; which means, not a partial, but an entire, loss of understanding. The common law has not drawn any discriminating line by [528]*528which .to determine how great must be the imbecility of mind do render a contract void, or how much intellect must remain '•to uphold it. Weakness of understanding is not, of itself, :any objection to the validity of a contract. If a man be legally compos-mentis, he is the disposer of his own property; and his will stands, for the reason of his actions. Jackson vs. Caldwell, 11 Cowen, 207; Odell vs. Buck, 21 Wend. 142; Stewart vs. Lispenard, 26 Wend. 298 et seq.; Clark vs. Fish, 1 Paige, 171; Blanchard vs. Nettle, 3 Denio; 37; Osterhout vs. Shoemaker, Id., note; Deoils Med. Jur. 555 et seq.; 2 Mad. Ch. Pr. et seq.
To establish any other standard of intellect or information beyond the possession of reason, in its lowest degree, as in itself essential to legal capacity, would, as said by Senator Verplanck, in the great case already cited (Stewart’s Ex'rs vs. Lispenard, 26 Wend. 203), create endless uncertainty, difficulty and litigation; would shake the security of property, and wrest from the aged and infirm that authority over their earnings and saving's, which is often their best security against injury and neglect. If you throw aside the old common faw test of capacity,' then proofs of wild speculation or -of extravagant and peculiar opinions, or the forgetful-mess or prejudice of old age, might be sufficient to shake 'the fairest conveyance, or impeach the most equitable will. "The law, therefore, in fixing the standard of positive legal 'competency, has taken a low standard of capacity; but it is a clear and definite one, and therefore wise and safe. It ‘¿holds, in the language of a late English commentator (Shelford on Lunacy, p. 39) that weak minds differ from strong ones, only in the extent and power of their faculties; but unless they betray a total want of understanding, or idiocy, or delusion, they cannot properly be considered unsound.
Nor is inadequacy alone a sufficient ground, in ordinary cases, for setting aside a conveyance of property. Fonb. Eq. B. 1 ch. 2, §9, note 2; Osgood vs. Franklin, 2 Johns. Ch. Rep. 23; Blackford vs. Christian, 1 Knapp’s Rep. 77; Dunn vs. Chambers, 4 Barbour, 376. In the leading case on this subject (Heathcote vs. Paignon, 2 Br. C. C. 167), Lord Thurlow said, if the Court takes such a ground as to rest upon the market price, every transaction of the kind would come into equity; and in Guynne vs. Heaton, 1 Bro. C. C. 9, Ford Thurlow said, that fi> set aside a conveyance, [529]*529there must be an inequality so strong, gross and manifest, that it must be impossible to state it to a man of common sense without producing an exclamation at the. inequality of" it; and this doctrine was approved by Lord Eldon, in Coles vs. Trecotheck, 9 Ves. 246; also, in Gibson vs. Leyes, 6 Ves. 273; and by Sir Wm. Grant, in Peacock vs. Evans, 16 Ves. 512; and by Chancellor Kent, in the case of Osgood vs. Franklin, already referred to.
Courts are not willing to enter into the question, whether the consideration be adequate in value to the thing which is promised in exchange for it. Hubbard vs. Coolidge, 1 Metcalf, 93; Bedel vs. Loomis, 11 New Hamp. 9. “If a contract deliberately made, withput fraud,” said Wilde, J., in Train vs. Gold, 5 Peek, 384, “and with a full knowledge of •all the circumstances, the least consideration will be sufficient.” “If there be ho suggestion of fraud,” says Mr. Smith, “the Court will not hold the promise invalid upon the ground of mere inadequacy; for it is obvious, that to do so-, would be to exercise a'sort of tyranny over the transactions of parties, who have a right to fix their own value upon their own labor and exertions, and would be prevented from doing so, were they subject to a legal scrutiny on each occasion, on the question, whether the bargain had been such as a prudent man would have entered into.”
“Suppose,” says the same author, “I think fit to- give a thousand pounds for a picture not worth fifty, it is foolish on my part; but if the owner do not take me in, no injury is done; I may have my reasons; I have detected in it the touch of Raphael or Correggio. It would be hard to prevent me from buying it, and hard to prevent my neighbor from making the best of his property, provided he do not take me in, by telling a false story about it.”
There are two remarkable instances illustrative of the principle that, in the absence of fraud, mere inadequacy of consideration is no ground for avoiding a contract. See the two late cases of Bainbridge vs. Firmston, 1 Perr. & Dav. 2 (10 Add. & Ell. 309), and Wilkinson vs. Oleviera, 1 Bingham, N. C. 490 (27 Eng. Com. Law Rep.) in which the defendant promised to give the plaintiff £1,000 for the use of a letter which contained matters explanatory of a controversy in which he was engaged, and the consideration was held not to be inadequate to support the promise.
[530]*530The are two old cases upon this subject — Thornborou vs. Whiteacre, reported in 2 Ld. Raymond, 1164, and James vs. Morgan, 1 Lev. 111, which will fully compensate the reader for reading. I have referred to them in my Law School, to show to what extent such Judges as Lord Holt have gone to sustain contracts, when assailed for want of consideration.
The first was an action in which the plaintiff declared that the defendant, in consideration of 2s. 6d. paid down, and £4 17s. 6d. to be paid on the performance of the agreement, promised to give the plaintiff 2 grains of rye corn on Monday, the 29th of March, 4 on the next' Monday, 8 on the next, 16 on the next, 32 on the next, 64 on the next, 128 on the next, and so on for a year, doubling on every successive Moiiday, as counsel contended, but on every alternate Monday, as Judge Holt construed, quod libet, the quantity delivered on the last Monday. Mr. Salkeld, the Reporter, demurred to the declaration, arguing that, suppose the contract to be performed, the quantity of rye ho be delivered would be 524,288,000 quarters (a quarter is 8 bushels!) and that all the rye grown in the world would not amount to so much. But Lord Holt said, that though the contract was a foolish one, it would hold at law, and the defendant ought to pay something for his folly. The case was compromised.
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By the Court. —
Lumpkin, J.,
delivering the opinion.
After carefully investigating the facts in this case, we are forced to the conclusion, that the verdict of the jury is strongly and decidedly against the weight of evidence. We shall not, however, enter upon a review of the testimony to demonstrate the correctness of this result. The proof spea.ks for itself.
W.e prefer stating some general principles applicable to this investigation, and then submit it to the reconsideration of another jury, disclaiming all wish or intention to constrain them to a finding which their own judgments do not approve.
I assume, in the first place, that to establish incapacity in a grantor, he must be shown to have been, at the time, non compos mentis, in the legal acceptation of that term; which means, not a partial, but an entire, loss of understanding. The common law has not drawn any discriminating line by [528]*528which .to determine how great must be the imbecility of mind do render a contract void, or how much intellect must remain '•to uphold it. Weakness of understanding is not, of itself, :any objection to the validity of a contract. If a man be legally compos-mentis, he is the disposer of his own property; and his will stands, for the reason of his actions. Jackson vs. Caldwell, 11 Cowen, 207; Odell vs. Buck, 21 Wend. 142; Stewart vs. Lispenard, 26 Wend. 298 et seq.; Clark vs. Fish, 1 Paige, 171; Blanchard vs. Nettle, 3 Denio; 37; Osterhout vs. Shoemaker, Id., note; Deoils Med. Jur. 555 et seq.; 2 Mad. Ch. Pr. et seq.
To establish any other standard of intellect or information beyond the possession of reason, in its lowest degree, as in itself essential to legal capacity, would, as said by Senator Verplanck, in the great case already cited (Stewart’s Ex'rs vs. Lispenard, 26 Wend. 203), create endless uncertainty, difficulty and litigation; would shake the security of property, and wrest from the aged and infirm that authority over their earnings and saving's, which is often their best security against injury and neglect. If you throw aside the old common faw test of capacity,' then proofs of wild speculation or -of extravagant and peculiar opinions, or the forgetful-mess or prejudice of old age, might be sufficient to shake 'the fairest conveyance, or impeach the most equitable will. "The law, therefore, in fixing the standard of positive legal 'competency, has taken a low standard of capacity; but it is a clear and definite one, and therefore wise and safe. It ‘¿holds, in the language of a late English commentator (Shelford on Lunacy, p. 39) that weak minds differ from strong ones, only in the extent and power of their faculties; but unless they betray a total want of understanding, or idiocy, or delusion, they cannot properly be considered unsound.
Nor is inadequacy alone a sufficient ground, in ordinary cases, for setting aside a conveyance of property. Fonb. Eq. B. 1 ch. 2, §9, note 2; Osgood vs. Franklin, 2 Johns. Ch. Rep. 23; Blackford vs. Christian, 1 Knapp’s Rep. 77; Dunn vs. Chambers, 4 Barbour, 376. In the leading case on this subject (Heathcote vs. Paignon, 2 Br. C. C. 167), Lord Thurlow said, if the Court takes such a ground as to rest upon the market price, every transaction of the kind would come into equity; and in Guynne vs. Heaton, 1 Bro. C. C. 9, Ford Thurlow said, that fi> set aside a conveyance, [529]*529there must be an inequality so strong, gross and manifest, that it must be impossible to state it to a man of common sense without producing an exclamation at the. inequality of" it; and this doctrine was approved by Lord Eldon, in Coles vs. Trecotheck, 9 Ves. 246; also, in Gibson vs. Leyes, 6 Ves. 273; and by Sir Wm. Grant, in Peacock vs. Evans, 16 Ves. 512; and by Chancellor Kent, in the case of Osgood vs. Franklin, already referred to.
Courts are not willing to enter into the question, whether the consideration be adequate in value to the thing which is promised in exchange for it. Hubbard vs. Coolidge, 1 Metcalf, 93; Bedel vs. Loomis, 11 New Hamp. 9. “If a contract deliberately made, withput fraud,” said Wilde, J., in Train vs. Gold, 5 Peek, 384, “and with a full knowledge of •all the circumstances, the least consideration will be sufficient.” “If there be ho suggestion of fraud,” says Mr. Smith, “the Court will not hold the promise invalid upon the ground of mere inadequacy; for it is obvious, that to do so-, would be to exercise a'sort of tyranny over the transactions of parties, who have a right to fix their own value upon their own labor and exertions, and would be prevented from doing so, were they subject to a legal scrutiny on each occasion, on the question, whether the bargain had been such as a prudent man would have entered into.”
“Suppose,” says the same author, “I think fit to- give a thousand pounds for a picture not worth fifty, it is foolish on my part; but if the owner do not take me in, no injury is done; I may have my reasons; I have detected in it the touch of Raphael or Correggio. It would be hard to prevent me from buying it, and hard to prevent my neighbor from making the best of his property, provided he do not take me in, by telling a false story about it.”
There are two remarkable instances illustrative of the principle that, in the absence of fraud, mere inadequacy of consideration is no ground for avoiding a contract. See the two late cases of Bainbridge vs. Firmston, 1 Perr. & Dav. 2 (10 Add. & Ell. 309), and Wilkinson vs. Oleviera, 1 Bingham, N. C. 490 (27 Eng. Com. Law Rep.) in which the defendant promised to give the plaintiff £1,000 for the use of a letter which contained matters explanatory of a controversy in which he was engaged, and the consideration was held not to be inadequate to support the promise.
[530]*530The are two old cases upon this subject — Thornborou vs. Whiteacre, reported in 2 Ld. Raymond, 1164, and James vs. Morgan, 1 Lev. 111, which will fully compensate the reader for reading. I have referred to them in my Law School, to show to what extent such Judges as Lord Holt have gone to sustain contracts, when assailed for want of consideration.
The first was an action in which the plaintiff declared that the defendant, in consideration of 2s. 6d. paid down, and £4 17s. 6d. to be paid on the performance of the agreement, promised to give the plaintiff 2 grains of rye corn on Monday, the 29th of March, 4 on the next' Monday, 8 on the next, 16 on the next, 32 on the next, 64 on the next, 128 on the next, and so on for a year, doubling on every successive Moiiday, as counsel contended, but on every alternate Monday, as Judge Holt construed, quod libet, the quantity delivered on the last Monday. Mr. Salkeld, the Reporter, demurred to the declaration, arguing that, suppose the contract to be performed, the quantity of rye ho be delivered would be 524,288,000 quarters (a quarter is 8 bushels!) and that all the rye grown in the world would not amount to so much. But Lord Holt said, that though the contract was a foolish one, it would hold at law, and the defendant ought to pay something for his folly. The case was compromised.
James vs. Morgan, 1 Lev. 111, is the old case in which the horse was sold for one barley corn for-the first nail in the horse’s shoe, two for the second, and SO’ doubling on each nail. The jury found, under the direction of the Court, £8, the value of the horse. The quantity of barley-corn was estimated at 500 quarters, or 4,000 bushels.
It is proper to add, that in cases where imbecility of mind and inadequacy of consideration unite, though neither standing alone, is sufficient, under ordinary circumstances, to invalidate a contract, the Court has granted relief, without other evidences of imposition; and especially is this the case where imbecility of mind and inadequacy of consideration is united with an abuse of confidence which the one party reposed in the other. Clarkson vs. Hannay, 2 Pierre Wms. 204; Gibson vs. Jeyes, 6 Ves. 266; Crow vs. Ballard, 1 Ves. Jr., 215; Mortleck vs. Buller, 10 Ves. 292; Dealty’s Heirs vs. Murphey, 3 H. K. Marshall’s Rep. 475; Whelan vs. Whelan, 3 Cowen, 537; Whipple vs. McClure, [531]*5312 Root, 216; Per. Harris, P. I., in Dunn vs. Chambers, 4 Barb. 379.
It need scarcely be remarked, that a Court is not bound to decree a specific performance in any case where it would not set aside the contract, nor to set aside any contract that it would not order to be specifically performed.
It will be for the jury to apply these rules of law to the facts of this case, carefully distinguishing between imbecility and eccentricity of mind. Many of the brightest intellects that ever lived have partaken of this latter infirmity, if indeed it be one. One circumstance that is incontrovertibly established, has weighed heavily upon our minds; and that is, that Green Simmons, to the day of his death, seems to have lived and died happy and content with the arrangement which he had made, or, to use his own emphatic language, the “chip off the old block” had not abused his confidence.
As to the other points, we have deemed it unnecessary to notice them. But as an act of justice to the presiding judge, we have thought it best to append his own opinion entire, to that of the Court. We confess to another motive. Will he pardon the liberty? It will daguerreotype fo posterity the peculiarities of our most excellent brother far better than any post-mortem eulogy of ours, should Providence impose this duty upon us, which, may Heaven, in its mercy, avert.
JUDGE HARRIS’ OPINION.
“I have, since the indication of my opinion, on the last day of Putnam Superior Court, on the several grounds contained in the motion by defendant for a new trial, given to the bill, answer, brief of testimony filed, and the interrogatories in the case, a very careful perusal. This was due to the movant; it was due to myself, as my opinions were by no means so fixed as to be unchanged by more mature consideration.
“There is more in the testimony upon which the verdict can be well supported than I had thought there was during the progress of the trial, or at the time when the motion was made for a new trial.
“And whilst it is due to candor to say, that had I been on the jury, as then impressed by the testimony, I should have been reluctant to set aside the deed to Maddox,- I feel that [532]*532now, I must not attempt to control the deliberate finding of the jury, and that to do so, would be a flagrant violation of the great principle which separates the powers of the Judge and the jury.
“It is impossible to peruse the testimony, as to the capacity of mind of Simmons, without perceiving great conflict of opinion. In such case, who are to decide? Who have the exclusive right to settle the credibility of witnesses? the value and weight of testimony? Who but the jury? And is-there not enough in the testimony of his family physician, Dr. Clopton, and in the proof by others, of Simmons’ unstable, varying dispositions of property, keeping in 'view his age and health, to make it very uncertain whether he had mind enough to make a contract of the kind sought to be set aside ?
“The jury (and it was one distinguished by intelligence and character, and perfect impartiality) thought that Green Simmons had not that degree of mental capacity necessary to the making of such an instrument.
“How easy was it, then, after that point was agreed on, to come to' the conclusion that the considerations expressed in the deed were grossly inadequate — indeed, unconscionable, for such an amount of valuable negro property as was conveyed by the deed, especially when they look to the offer of Mr. Edmondson of five thousand dollars for the property, payable at his death, with the promise, in addition, of the support of Simmons, in the meanwhile!
“Dr. Maddox, too, was a stranger to the blood of Simmons. Simmons was an old man, between sixty and sixty-three years of age, laboring under consumption. Should not transactions between parties thus situated be scanned closely? How much easier for Dr. Maddox, whom it _ is presumed was familiar with the nature of diseases, to count the pulses of life with more accuracy than one not of his profession! indeed, to measure its duration with almost certainty, with the important fact, previously ascertained by him, that Simmons had consumption!
“Can it be doubted that the jury gave to these facts their full value, and that they formed some of the elements of their judgment ?
“Can any fair-minded man, in reviewing this whole case, come to any other conclusion, than that there are facts and circumstances in it enough to sustain the verdict?
[533]*533“What I have said, disposes of the ground that the verdict is contrary to evidence. But it is said that the verdict is contrary to law.
“I am somewhat at a loss to perceive how that can be, if there be evidence enough to support the verdict. The two grounds are inseparably allied; so that if the first is not sustained, the second can not be.
“It has been made a ground for new trial, that I did not charge the jury, that the contingency of a recovery of the negroes from Ladd, ought to- be considered by them in determining the consideration paid by Maddox.
“The defendants’ counsel say they made and argued the point. This may be so. No such request was made of me. Before charging the jury, I stated distinctly that although many requests had been submitted, in writing, by counsel on either side, I would, firstly give my general charge as to the principles of law and equity pertinent to the case, and that if it should not cover all the requests presented, upon my attention being called to it, I would proceed then to charge as to such requests.
“When I had closed the general charge, I desired to know of counsel if there was any request which they' desired me to give to the jury, and paused about a. minute for an answer; when' Mr. Lawson, one of defendant’s counsel handed me a single request, instructing the jury ‘that they should give mo-re credit to a witness who derived his knowledge from long acquaintance with the conduct of Green Simmons, than to one who forms an opinion from a single transaction;’ which was given as desired.
“The matter -embodied in this ground was never asked either in writing or orally, to be given. To guard against misrepresentation or misapprehension, it is an established rule of the Ocmulgee Circuit, that all requests must be handed in before the general charge is made. In the case under consideration, the rule was relaxed, and the defendant’s, counsel had the full benefit of the indulgence.
“It is a matter worthy of note, that the substance or matter of the charge is not contested or complained of. On his occasion, I carefully avoided the slightest reference to any portion of the testimony.
“After stating the rule in equity as to responsive answers, and how only they were to be outweighed to enable the jury [534]*534clearly to determine thereby how stood the charges as to fraudulent combination of John and Wm. Maddox — imposition by John Maddox on Simmons — and of the undue influence of John Maddox over the mind and conduct of Green Simmons, I then proceeded to say, from the course of the argument in the cause, it was apparent that the main battle-ground was the alleged gross inadequacy of consideration paid by Maddox for the propery, coupled with the alleged insufficient capacity of mind in Simmons, to make such a contract; both of which must unite before they could set aside the deed on this ground.
“And it is complained of, that I spoke of this last ground as the -main battlefield.
“It is very difficult to satisfy the complaints of a losing party. If the remark was exceptionable, it surely was not prejudicial to defendant. With much more show of reason could the plaintiffs have excepted to it.
“But it is gravely asked that a new.trial be awarded, for that the ‘manner’ and ‘emphasis’ of the Court misled the-jury.
“This ground has the merit, at least, of novelty.
“Now, before considering it, let it be borne in mind that the propositions in reference to inadequacy of consideration charged, were—
“ist. That the law required a higher degree of capacity to malee a contract than it did to make a will. What that grade was, had not been clearly defined, but it certainly required memory of one’s property; a knowledge of what he was doing; judgment and free assent.
“2. That equity abhorred unconscionable bargains; but before it would set contracts aside, two things must unite- — ■ incapacity of mind to make a contract, and gross inadequacy of consideration.
“These legal propositions are not disputed; no error alleged against their truth, as principles controlling Courts and juries; but the ‘manner’ of charging them, and the ‘emphasis’ with which they are alleged to have been charged, is the bur-then of complaint.
“I reply, that I am utterly unconscious- that on that occasion my manner or emphasis was so marked, as to give the plain words and plain principles a meaning beyond what they naturally conveyed. The charge was calm, passionless, deliber[535]*535ate, and, I think, perspicuous — the intonations of voice even, and so regular as almost to be monotonous,
“Indeed, it is difficult to conjecture how legal abstractions, such as those given in charge, can admit of change by manner or emphasis. I think I have rather too much, good taste to attempt at any time to mark such plain and simple truisms as those given in charge, either by such ‘manner’ or ‘emphasis’ as I would repeat some of the remarkable passages of Shakespeare, drawing out a latent beauty or thought which had escaped the cursory reader.
“This ground speaks little for the estimate defendant’s counsel have of the intelligence or fairness of the jury; it is, moreover, an indirect and covert imputation upon the judge. Self-respect and the dignity" which should characterize, at all times, the deportment of this officer, forbids that he should meet any intended imputation otherwise than by saying, it is unfounded;"that it is the offspring ‘of a heat oppressed brain,’ ‘a bodiless creation,’ indefinable, intangible. That my ‘manner’ and ‘emphasis’ may be at all times peculiar and characteristic, I am quite ready to admit; for they are my own, not borrowed. If earnestness and perspicuity are, as it would seem, reprehensible, then to meet the taste and talent of those disposed to be querulous, insipidity and obscurity must be substituted.
“I dismiss this topic without other comment than I have made — less, probably, than it should have provoked, when it is remembered that the counsel by whom this ground was inserted in the motion for new trial, knew, and had been told by me before the verdict wais rendered, that I thought the plaintiff’s case had not been as well made out as it should have been.”
JUDGMENT.
Whereupon, it is considered and adjudged by the Count, that the judgment of the Court below be reversed, upon the ground that the verdict was strongly and decidedly against the weight of evidence.