#### *Boyce’s Adm’r &c. v. Smith.*

January Term, 1853,

Richmond.

[60 Am. Dec. 313.]

(Absent Lee, J.)

1. Contract — Monomania—Effect.†—Monomania, in no way connected with the subject of a contract, will not invalidate it.

2. Appellate Practice — Decrees—Correction.‡—Decree corrected upon an admission in the bill, and affirmed.

Robert I. Smith *in*1842 instituted a suit in the Superior court of chancery for the county of Henrico and city of Richmond against the committee of John Boyce, a lunatic, which upon the death of Boyce was revived against his administrator and heirs. In his bill he charged- that John and Joseph Boyce, being merchants and partners, as such became indebted to George Willig of Philadelphia; and in 1821, upon' a settlement of their accounts, John Boyce executed to Willig his bond for 237 dollars 75 cents. That this bond was transferred by Willig to the plaintiff on the 2d of September 1833; and that in the November following Boyce paid him upon it 100 dollars. That previous to the 1st of January 1836 Boyce frequently promised to pay off the bond, but failed to do so. That on the *day*last mentioned the plaintiff, at the instance of Boyce, took his bond for 333 dollars 34 cents, the amount then due on the bond of 1821, payable in ten years, with interest payable semi-annually from its date; and to secure the payment of it Boyce executed a deed of the same date, which was duly admitted to record in the proper office, by which he conveyed to a trustee certain real estate, upon trust that upon the failure to pay the principal or interest as '^required by the terms of the bond, the trustee should sell the lands and pay off the debt. That with the exception of 7 dollars 22 cents, paid the 1st of February 1836,. no part of the money had been paid: That since the execution of the bond and deed of trust Boyce had been, declared a lunatic, and that the trustee was dead. And making the committee of the lunatic and the heirs of the trustee parties, he asked that the land conveyed in the deed of trust might be sold and the plaintiff’s debt paid; and for general relief. The bond .and deed of trust were filed with the bill.

Boyce having died; his administrator answered the bill. He called for proof of everything necessary to enable the plaintiff to recover. He alleged that at the time the bond and deed of trust were executed Boyce was a lunatic, and not competent to make any valid contract, and that very shortly after' the execution of the deed he was declared a lunatic by the regular judicial proceeding. And he alleged that no assets had come to his hands, and he knew of no property except a small tract of land in the county of Henrico.

The plaintiff examined Willig as a witness, who proved the dealings between himself and John and Joseph Boyce, and the execution of the bond in 1821 by John Boyce, for the balance then due him on their account, and that he in 1833 assigned this bond for value to the plaintiff. This evidence was excepted to because the witness was the assignor of the bond. The plaintiff proved by another witness, who lived with him as a clerk at the time, that on the 27th of November 1833 Boyce paid to the plaintiff 100 dollars on account of a bond assigned by Willig to plaintiff; and that the bond was over 400 dollars, principal and interest.

It appears from the evidence that Boyce was the first teller in the Farmers Bank for many years, and ^resigned-the office in March 1834. The first indications of lunacy were noticed in 1832. It then and until 1834 when he quit the bank, was limited to the subject of religion, though his aberration of mind increased. After he left the bank his derangement, according to the expression of one witness, became more general. In the latter part of 1835 and for a part of January 1836, he was employed in the office of the Virginia towing company in posting up their books. During this period he dined at one of the hotels in the city, and provided his own lodging and went where he pleased, except that he was under a strict promise to his sister, who lived about a mile from the city, that he would attend no religious meeting's. He went to his sister’s house every Saturday evening, and usually came into the city on Monday morning. He seems to have been employed in the office of the towing company principally for the purpose of benefiting him and whilst engaged there was under the immediate care of a nephew who was a clerk in the office, who states that any conversation in the office on any subject excited him so that he would remain but a short time and leave abruptly, when no persuasion could induce him to return.

When the cause came on’to be heard in June 1847 the court decreed a sale of the trust subject for the satisfaction of the plaintiff’s debt: And thereupon the defendants applied to this court for an appeal, which was allowed.

Lyons, for the appellants.

Gratton, for the appellee.

*

The principal case was followed in Marks v. Hill, 15 Gratt. 422, in decreeing costs of the appeal to the appellee. See also, Williamson v. Goodwin, 9 Gratt. 503; monographic *note*on "Costs” appended to Jones v. Tatum, 19 Gratt. 720.

†

See monographic *note*on “Insanity” appended to Boswell v. Com., 20 Gratt. 860.

‡

See monographic *note*on “Appeals.”

SAMUELS, J.

The evidence not excepted to shows with sufficient clearness, that previous to the 1st of January 1836, John Boyce was indebted by bond to Robert I. Smith in the amount mentioned in the bond *and deed of trust of that date. Question, however, is made by the appel*355lants whether John Boyce was of sufficiently sound mind at that time to execute the bond and deed. The evidence clearly proves that the grantor at that time and before was laboring under monomania, but upon a subject in nowise connected with affairs, of this nature; that he was competent to transact other business, and was engaged therein; that general mania did not supervene until some time after. Partial insanity of this nature and degree could not invalidate the bond and deed. Shelford on Lunacy 260. If the evidence had established the incompetency alleged, the appellee would have been remitted to his rights and remedies on the bond previously existing by virtue of the act of March 17th, 1842, Sess. Acts, ch. 98. The appellants here are not materially concerned in the question whether the property shall be held liable under the deed of trust, or under the bond and the statute. When the original bill was filed, the complainant’s demand for more than the interest then due might possibly have been resisted on the principles of the case of Mayo v. Judah, 5 Munf. 495. At the time of the decree, however, the principal and interest had all become payable, and were properly decreed to the appellee. The decree omits to allow a credit for 7 dollars 22 cents, admitted in the bill to have been paid February 1st, 1836; correcting the decree in this particular, I am of opinion to affirm it in all other respects, with costs to the appellee.

The other judges concurred in the opinion of Samuels, J.