Clark v. Lopez
75 Miss. 932
Miss.
1898
Check Treatment
Whitfield, J.,

delivered the opinion of the court.

A careful scrutiny of all the testimony in this record leaves us, after thoroughly sifting and comparing it under the light of the authorities, satisfied that the decree of the chancellor cannot be upheld. The principles on which the case must turn are clearly set forth in the case of Allen v. Jewell, 94 U. S., 508-512, and in the able and exhaustive opinion of the court of appeals in equity of South Carolina, in Butler v. Haskell, 4 Dessausure’s Eq. Rep., 686-716, in which the authorities covering this field of inquiry are most learnedly reviewed. The supreme court of the United States, in the case cited, 'announces it as settled law that “whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and reasonable application of the injured party or his heirs, interfere and set the conveyance aside.” Relief was granted in this case after a lapse of six years, and, though valuable improvements to the amount of $6,000 had been made by the purchaser. Judge Story, in Harding v. Wheaton, 2 Mason, felicitously states the rule as follows: “Extreme weakness [of mind] will raise an almost necessary presumption of' imposition, even when it stops short of legal incapacity; and *937though a contract in the ordinary course of things reasonably made with such a person, might be admitted to stand, yet, if it appear to be of such a nature as that such a person could not be capable of measuring its extent or importance, its reasonableness or its value, fully and fairly, it cannot be that the law is so much at variance with common sense as -to uphold it. ’ ’ These are the words of an acknowledged master of equity jurisprudence, and fit into the facts of this case with peculiar force and aptness. In the case of Butler v. Haskell, supra, cases are cited (p. 690) where the inadequacy did not exceed one half; and it is said (pp. 690, 692), very pertinently, that the fact that the ‘ ‘ bargain is hawked about ’ ’ only shows the necessities of the party. Very great stress is laid in this case upon the necessitous condition of the seller,' and the unequal plane upon which, in consequence of that and other features, the parties dealt. Both these observations apply strongly in the case at bar. The conveyance should be canceled upon the complainant’s putting the appellee in statu quo ante the execution of the deed. This can be done by requiring the complainant to repay the purchase money with legal interest from the date of the deed, June 6, 1890, and all taxes or charges on the land paid by appellee since the purchase, and the amount of all permanent valuable improvements put thereon by him, if any, since that time.

Whilst looking to the testimony on any one line of assault upon the deed, there might bo ground to hesitate, yet, when the combined effect of all the proof is held steadily in mind, we have no hesitancy in reversing the decree and remanding the cause to be proceeded with in accordance with this opinion.

White & Neville, for appellee, after the delivery of the foregoing opinion, presented to the court a suggestion of error, urging that an affirmance should be had because the oral testimony of Mrs. Clark, appellant, did not appear of record.

*938Whitfield, J., delivered the response to the suggestion of error.

The well-settled rule that affirmance must ordinarily follow when the bill of exceptions does not certify to us all the testimony, has no application in this case, for two obvious reasons. , First: Mrs. Clark’s deposition is in the record, full and complete on every issue made by the pleadings. If the oral testimony was in conflict with this, it merely showed no decree should be based on her testimony. We discarded her testimony absolutely, because it was manifest, from her answers, that she answered without the slightest degree of intelligence.' Second: If, as is intimated, the purpose of the oral examination was to exhibit her before the chancellor, so that he could decide as to her mental capacity from personal observation, it is to be said that that matter was far more safely to be determined from the testimony of witnesses who had known her always, than from any such casual examination and observation. Her deposition, on its face, conclusively demonstrates want of mental capacity, and, if the oral examination had an opposite tendency, it simply establishes the wisdom of doing precisely what we did do — that is, of discarding her testimony altogether, and resting the decree on the testimony of witnesses compotes mentis.

Suggestion overruled.