#### JAMES SMITH *vs.*SAMUEL BEATTY.

Weakness1of mind alone, without fraud, is not'a sufficient ground on which invalidate an instrument.

Nor wilhold age alone, without fraud, have that effect.

But excessive old' age, combined With weakness of mind, may constitute a ground for setting aside a conveyance.

A vendee, who knows there is a gold mine on the land for which he is contracting, is not compelled to disclose that fact to the vendor: But, if he is interrogated as to his knowledge of a mine, and denies the knowledge of which he is possessed, this denial will make the transaction fraudulent;

This was an appeal' from an interlocutory order of the Court of Equity of Lincoln county, at Spring Term, 1843, his Honor Judge Dick presiding, directing the injunction which had-been obtained in the case to be continued until the hearing.

The plaintiff charged in his bill, that'he was a very old man — seventy years of age — and unable to make a contract; that he was addicted to drinking ardent spirits to excess; and’that'the defendant, well'knowing his infirmities, and that there was a valuable gold mino on the plaintiff’s land, of which the plaihtiff was' ignorant, plied him with spirits, in the absence of his son with whom he lived, and who usually took care of him and advised him in his affairs, and under these circumstances obtained lrom him a. lease of his land for a term of five years from the month of August, 1842, at a rent of one tenth of the gold that should be made on the land. The plaintiff further stated, that the defendant pretended to him, that he was only about to make an effort to discover, whether there was gold on the land, when in truth and in fact he had, at several times before, picked *459up considerable quantities of gold on the surface of the said land ; and that, when he was interrogated on the subject, he denied that he had ever found gold on the land, and he was doubtful whether any could be there procured. The plaintiff further averred, that the rent of the land is worth one third of the gold made on it. The bill prayed for an injunction to restrain the defendant from working the land, (which was granted by a Judge out of court,) and that the lease be decreed to be surrendered, as having been obtained by fraud.

The defendant, in his answer, admits the lease, but denies that the plaintiff was incapable to make a contract from .old age or any other cause — denies that he was under the influence of ardent spirits, when the lease was made — denies that he decoyed him from his sen’s to his own house to procure the lease, or that he used any means to intoxicate him, or that he was then intoxicated. He admits that he had, before the date of the lease, found between ten and twenty pennyweights of gold on the land; and_ says he told the plaintiff he had found a place on his land where he thought gold could be procured. He states that they then agreed upon the lease set forth in the bill, and it was attested by two respectable neighbors. He admits that the plaintiff lives with-his son, but denies that he ever heard that he consulted his son on affairs, important or unimportant. He denies that he was ever asked, before the execution of the lease, whether he had ever found gold on the land, or that he ever said there was no gotd on or in the said land. He denies that he leased the land, merely to examine it for gold; and states that he did not know himself the value of the mine, a matter which it would be impossiblo for any one to ascertain, by simply finding a few pennyweights on the surface, and that it is yet but conjecture what the mine will prove to be worth, though he admits it to be a good one at present. — . He further states, that surface mines do not rent for one half of the gold made, but that the customary range of rent for such mines is from one sixth to one flfteeth. He avers that *460he has tendered the plaintiff all the rent due him, and denies a11 fraud &c-

On the coming in of the answer, the defendant moved the COHr|. t0 ¿issoiVQ the injunction. The motion was refused, and the injunction ordered to be continued to the hearing of the cause. The defendant, by leave of- the court, appealed from this decision.

*Alexander. Hoke*and *Osborne*for the plaintiff.

*.Caldwell*for the.defendant.

Daniel, J.

Weakness of mind alone, without fraud, does not appear to be a sufficient ground to invalidate an instrument. It is said that a Court of Equity will not measure the size of people’s understandings or capacities. 1 Mad. Ch. Pr. 280. Excessive .old age, with weakness of mind, may be a ground for setting aside a conveyance obtained under such circumstances. But old age alone, without some proofs of fraud, will not invalidate a transaction 1 Mad. Ch. Pr. 283. The answer denies that the plaintiff was incapable to contract when the lease was made, either from old age or intoxication. A vendee, who knows that there is a gold mine on the'land, is not compelled to.disclose that fact to the vendor. But, if he is interrogated as to his knowledge of such a thing, and he then denies any knowledge of the mine, this denial will make the transaction fraudulent. The defendant admits that he 'had picked up some gold on the land before the lease was executed, and he does not state in his answer that he disclosed that fact to the lessor. But he expressly denies, that he was ever interrogated by any one on that subject, or ever made any false representations concerning the gold so by him picked up.

The nature of the rent reserved in the lease clearly shews., the lessor knew for what purpose the lease was taken by th.e lessee. It seems to us that the defendant has fully and fai.rly answered every material charge and allegation in the bill.; *461and that he has expressly denied every charge, which, if undenied, would authorize a Court of Equity to declare the lease fraudulent. We therefore think, that- the order made by the court below, continuing the injunction to the hearing of the cause, was erroffeous, and that the injunction should have been dissolved.

Pee, Curiam. Ordered to be certified accordingly.