| S.C. | Apr 7, 1905
April 7, 1905. The opinion of the Court was delivered by The Circuit Court refused a motion made by the heirs of Dick Bryant, one of the defendants, now deceased, to set aside a judgment for foreclosure and sale. The motion was made on the ground that Dick Bryant was insane when the mortgage was given, and the summons and complaint were served, and no guardian adlitem was appointed on his behalf. The case is very perplexing. The affidavits are convincing that Dick Bryant was at times irresponsible to the degree of complete insanity; governed in his conduct by delusions and violent passion rather than by reason, and sometimes indulging in revolting indecencies and exposures of his person without consciousness of impropriety. The affidavits, however, also show there were lucid intervals. But there is no satisfactory evidence of the duration of either the attacks of dementia or of the lucid intervals. In the Circuit decree it is made very clear, however, that during these intervals he transacted business with intelligence, and that he was capable at such times of making valid contracts.
"By `lucid intervals' is meant, not merely a cessation of the violent symptoms of the disorder, but a temporary restoration of reason such as to create responsibility for acts *336 done during its continuance. Still, restoration of the mental faculties to their original condition is not necessary; it is sufficient if there be such restoration that the person is able, beyond doubt, to comprehend and to do the act with such reason, memory and judgment as to make it a legal act." 16 A. E. Ency. Law, 2 ed., 565. The rule as to mental capacity is more stringent in contracts than in wills, but the following language, taken from Lee v. Lee, 4 McCord, 181, 183, 17 Am. Dec., 722, is applicable to contracts: "But it was not (as was said by Lord Erskine in his celebrated speech for Hadfield) every man of a frantic appearance and behavior who is to be considered a lunatic, either as it regards obligations or crimes, but he must appear to the jurynon compos mentis, not at the anterior period, but at themoment the act was done. Coop. Med. Jurisp., 396. In the case of Cartwright v. Cartwright, 1 Phil., 100, this doctrine was carried still further. `If (it was there stated by the court) you can establish that a party habitually afflicted by the malady of the mind has intermissions, and if there was an intermission at the time of the act, that being proved is sufficient, and the general habitual insanity will not affect it.'"
The attacks described in the affidavits were so violent that it is extremely improbable Dick Bryant could have been induced to even make an effort to execute a mortgage while one was on him. It is to be further observed that while there are general statements in the affidavits of insanity at the time the mortgage was made, there is no specific charge that it was not executed during a lucid interval. The mortgage was witnessed by a son-in-law, who is now very active in pressing the allegation of insanity, and it is highly probable from this circumstance, which is unexplained, that the mortgage was given when the mortgagor was in possession of his faculties.
It is also reasonable to suppose that Dick Bryant was sane when the summons was served upon him, and did not intend to resist the foreclosure, for it seems that some at least of his *337 heirs who are now trying to set the foreclosure aside knew when the service was made, and it may be fairly inferred if the old man had been unable to look after the suit, they would have taken some steps in his behalf. This non-action on the part of his children tends to support the sworn statement of J.D. Nelson, who made the service, that he appeared to be quite in his senses when the summons and complaint were given him, and of Henry Tucker, Bryant's son-in-law, whose affidavit is to the effect that Bryant told him after the service about the origin of the mortgage and its non-payment. There is no sufficient evidence that after the service of the summons he was in a state of continued mental aberration for such period of time as to prevent his appearance and answer as required by the summons. The additional direct testimony on these points is set forth in the Circuit decree and need not be repeated here.
On review of all the affidavits, we conclude that the judgment of the Circuit Court is supported by the preponderance of the evidence, and it is, therefore, affirmed.