#### DEN EX DEM. JAMES BALLEW *vs*JONATHAN CLARK.

The party signing a deed or other instrument, or any person claiming under him, may show that at the time such deed or instrument was signed, he was of insane mind.

The’old doctrine, that aman cannot stultify himself has been long exploded.

Sanity is presumed *prima fade,*and the party, who alleges insanity tcf avoid a deed, must prove it; but if a general mental derangement or lunacy is shown, previous to the execution of the instrument, the bur-then of proof as to the sanity of the person executing the instrument at the time of its execution, is thrown'upon the person offering the instrument in evidence.

This was an appeal from the judgment of the Superior Court of Law of Surry County, at October Term, 1841, his Honor Judge Bailey presiding. The following is the case reported by the Judge. — This was an action of ejectment. The plaintiff offered in evidence a paper writing, purporting to be a deed for the land in controversy, from Meredith Bal-*24lew, who is still alive, to the lessor of the plaintiff, and proved that the defendant held as tenant under the said Meredith-The sole question was, whether, at the time of the execution PaPñr the said Meredith was of sane mind. A. great variety of testimony was offered to showthat before and at the execution of the instrument of writing, offered as a deed, he was and was not of sane memory. The Court charged the Jury that it was for them to decide from the testimony, whether Meredith Ballew knew what he was doing when he signed the writing — that in making a disposition of his property, they must be satisfied that he possessed at the time understanding and reason — that if he had not mind sufficient to understand what he was doing, his act would be null and void. The Court further charged the Jury that if the said Meredith was in his mind, at any time previous to the execution of the paper writing, the presumption was that he had his mind at that time, and that the burthen of proof would be upon the defendant to show the contrary, but that if the defendant had proved to the satisfaction of the Jury that Meredith Ballew was a lunatic before he executed the paper writing, the burthen of proof would be upon the plaintiff, to show that he had his mind at the time of execution.

The Jury found a verdict for the defendant. A new trial was moved for and refused — and judgment having been rendered for the defendant, in pursuance of the verdict, the plaintiff appealed.

*Boyden*for the plaintiff.

*Alexander*and *Barringer*for the defendant.

Daniel, J.

We are of the opinion that the charge of the Judge was correct. The general rule *is,*that sanity is to be presumed until the contrary be proved; and when an act is sought to be avoided, on the ground of mental imbecility, the proof of the fact lies on the person who alleges it. On the other hand, if a general derangement be once established, or conceded, the presumption is shifted to the other side, and sanity is then to be shown at the time the act was done, 3 Kent’s Com. 451, (3d ed.) 3 Bro. 441. 13 Ves. 88. *Jackson*

*25v *Vanduson,*5 Johns. Rep. 144. The case states, that the defendant was the tenant of Meredith Ballew; and, we understand, that the lessee of the plaintiff contended that the law would not allow the said Meredith to stultify himself, or any other person to do it except his heir at law after his death. In 3 Kent’s Com. 451, it is said, that the party himself may set up, as a defence and in accordance of the contract, that he was *non compos mentis,*when it was alleged to have been made. The principle advanced by *Littleton*and *Coke,*that a man shall not be heard to stultify himself, has been properly exploded, as being manifestly absurd, and against natural justice. *Yates*v *Bowen,*Strange, 1104. Buller’s N. P. 172. *Webster*v *Woodford,*3 Day’s Rep. 90. *Mitchell*v *Kingman,*5 Pick. Rep. 431. *Hill*v *Peet,*15 Johns. Rep. 503. The Judge was right, we think, in permitting the defendant to contest the validity of the deed, on the ground of insanity in the supposed bargainor. The judgment must be affirmed.

Per Curiam. Judgment affirmed.