Merwin, J.
One of the issues presented by the answer was whether Joshua Adams, on the 10th February, 1869, was of unsound mind. The referee found he was, and this finding is claimed to be unsupported by the evidence. Mr. Adams was an old man, had been sick for some time, and died soon after the date of the deed. There is evidence tending to show that in and from the fall previous his mind was impaired; that he was unconscious much of the time; was not able to help himself or appreciate his personal wants; was not able to engage in business transactions; could not talk understandingly. The testimony of those who had the care of him to a considerable extent was produced, and the surrounding circumstances shown. *277The question of unsoundness was one of fact. The conclusion of the referee was, I think, warranted by the evidence. In Van Deusen v. Sweet, 51 N. Y. 378, it was held that a deed executed by one non compos mentis is absolutely void, and that, in a law action to recover possession of real property claimed by a defendant under such a deed, the fact of the incapacity of the grantor may be shown by the plaintiff to defeat such claim, although no fraud is alleged, and such incapacity had not been legally or judicially determined at or before the execution of the deed. This case does not appear to have been overruled. In Riggs v. Society, 84 N. Y. 330, the complaint in substance alleged that Biggs, the plaintiff’s testator, was of unsound mind, and while in that condition transferred to defendant, by gift or contract, divers sums of money, which it still held, and refused to return. It was held that a good cause of action was stated, and that the contract could be rescinded, and that, if- the defendant sought to maintain the contract on the .ground that it was made in good faith for the benefit of the lunatic without notice of incapacity, and so far performed that if rescinded the party executing cannot be placed in statu quo, these facts must be alleged and proved by the defendant. According to the logic of the Riggs Case, it was sufficient for the defendant in the present case to show in the first instance the fact of unsoundness. It then was incumbent on the plaintiff to show the facts necessary in equity to sustain the deed. These equitable rights depended on the transaction, as it occurred between Joshua Adams and Joseph P. Adams, the grantee. It was not shown that the deed was for the benefit of Joshua, or was taken in good faith or for adequate consideration. On the contrary, it was found by the referee that it was obtained by fraud, and without consideration, and the evidence was sufficient to support these findings. The question was not whether the plaintiff’s testator took the mortgage in good faith, and without notice, actual or constructive, of the invalid deed, but whether the deed, invalid at law, could in equity stand. The defendants have a right to rest on the allegation and finding of unsoundness, and, if so, the existence of fraud is only important to rebut the equities that might be claimed to sustain the deed. In this regard the plaintiffs would have no greater rights than the mortgagor. The rule in the case of instruments sought to be set aside on the ground of fraud would not apply.
In this view of the case, it does not become important to determine whether, ■as claimed by plaintiff upon the evidence, it is to be presumed from the genuineness of the signature of the justice that the deed was acknowledged by the' grantor and delivered. Assume that was the case. It does not dispose of the issue as to unsoundness. So it may be, as claimed by plaintiffs, that the possession of Asa IC. Adams was not of such a character as to necessarily be inconsistent with the claim of Joseph P. Adams to an undivided one-half, and that therefore the mortgagee was not called on to inquire. This it is not nee'essary to determine, as the equities here do not depend on the dealings between the mortgagor and mortgagee, but on the dealings between the mortgagor and Joshua Adams, and from those dealings no equity appears sufficient to sustain the deed.
It is further claimed by the appellants that the referee erred in not finding, -as requested, that Asa K. recognized the conveyance in question. Assuming this was important, (Enders v. Sternbergh, 2 Abb. Dec. 53,) it was clearly a disputed question, depending upon the inferences to be drawn from the evidence, including some significant circumstances. The evidence is abundant to sustain the refusal of the referee.
There are no other exceptions as to findings or requests to find that are important to be considered.
Divers exceptions as to rulings on evidence were taken, but our attention is only called to the following: Upon the rebuttal the defendant’s counsel asked a witness, in reference to an occasion in 1880 when Joseph P. Adams *278served on Asa K. Adams a notice of his ownership and prohibiting the cutting of timber, whether Asa told Joseph on that occasion that he (Joseph) did not own afoot of the premises or the land. This was objected to by plaintiffs, but admitted, and the witness answered that he told him he did not own any of it. A similar question was asked two other witnesses, in reference to another occasion about the same time, when the deed in question was read over, and a similar answer taken over plaintiff’s objection. Assuming this was objectionable, the matter was not important, inasmuch as Joseph P. Adams had previously testified, without objection, that Asa had said to him substantially the same thing, The error, therefore, if any, was not material, and would not appreciably affect the result. The foregoing considerations lead to the conclusion that the judgment should be affirmed, with costs.
Hardin, P. J., concurred. Martin, J., did not vote.