#### Ripley vs. Babcock.

when the lunacy of a mortgagor is once established, it devolves on the party claiming the validity of the mortgage, to show by clear and satisfactory evidence that it was executed during a lucid interval.

APPEAL from tbe Circuit Court for *Bock*County.

Tbe matter at issue, and tbe nature of tbe evidence, is sufficiently stated in tbe opinion of tbe court.

*Hopicins &*Johnson, for appellant.

Knowlton, *Prichard &*Jackson, for respondent.

April 10.

*By the*Court,

PAINE, J.

This was an-action to foreclose a mortgage given by tbe respondent to secure a debt owed by bis son. Tbe defense is that be was insane at tbe time it was executed. And tbe only question in tbe case is, whether this defense was established by tbe evidence. Tbe court below found that it was; and although this finding was assailed with much force on tbe argument in this court, yet we have concluded that upon tbe evidence as a whole we cannot disturb it. We do not deem it necessary to state in detail tbe impressions made upon us by tbe testimony of each witness, but will refer generally to tbe considerations that have led us to this conclusion. In tbe first place it was admitted that tbe respondent was shown to have been insane at intervals, for many years. Of this there can be no question. It appears from tbe testimony of bis friends and neighbors, who bad all observed tbe unsoundness of bis mind, so that it was a fact well understood among them. It appears also from tbe same testimony, that one of tbe prevailing symptoms of tbe disease was a delusion in respect to bis wealth, and an inordinate disposition to mate bargains and convey away bis property. But while conceding this, tbe appellant’s counsel claimed that it also appeared that tbe respondent bad lucid intervals, and that this mortgage was executed in one of them.

It is true that tbe witnesses describe bis insanity as existing by “ fits ” and “ spellsbut they testify that these “spells” lasted sometimes two, sometimes four, and some*426times six m on tbs. Tbe witness Tuttle states that one year was in tbe same condition nearly tbe whole season. Nor q0 we think it can be assumed from tbe testimony, that bis insanity existed only during tbe cold weatber and ceased invariably during tbe warm weatber. It is true that some of tbe witnesses state that be was “ generally better ” in warm weatber. Tuttle says so. But be says also that one season it lasted tbe whole season, nearly. He says the “ insane spells ” usually came on in tbe winter or spring, and lasted from two to four months. If they sometimes did not appear till the spring, it would follow that be must have passed through tbe cold of winter without them. If when they appeared in tbe spring they lasted from two to four months, or perhaps to six months, as some of tbe witnesses testify, they must have extended into tbe warm weatber. So that we tbink it cannot be assumed that they were invariably present during tbe cold or absent during tbe warm weatber. And this conclusion is strengthened by *the more*direct evidence as to tbe condition of tbe respondent during the year 1858, to which we shall presently allude.

This mortgage was executed on tbe 1st of July, 1858. It must be admitted that tbe testimony of tbe appellant himself, who never saw tbe respondent until be came to Madison to live with bis son, a few weeks before tbe execution of tbe mortgage; of Mr. Eirmin, who drew tbe papers, and saw him only during one or two interviews at bis office, while there for the purpose of executing them; and that of Mr. Mara-tón and Kate Babcock, though much of it is of a mere negative character, would tend to show that tbe respondent was at that time sane. But from tbe very nature of tbe inquiry, evidence of this character must be, to a great degree, inconclusive and unsatisfactory to tbe mind. Wbeb it is conceded that but a few weeks before, tbe brain of the respondent was oppressed by this subtle disease ; that it had been so oppressed, with intervals of greater or less degrees of violence, for years; that tbe same difficulty manifested itself afterwards during tbe same year and the next; and when it is remembered that the disease often exists without being detected, even by tbe intelligent and tbe observing, it is *427very difficult, if not impossible, for 'any mind to pronounce tbat it was not present at any particular time, merely cause several intelligent and observing witnesses wbo bad an opportunity, failed to perceive it. It appears tbat tbe defendant bad resided in tbe town of Magnolia, some miles from Madison. In January, 1858, bis wife died. Not long after, in tbe spring, bis daughter died. These afflictions, which often crush, for a time, tbe soundest minds, were not without them natural effect on tbat of tbe respondent, which, at its best, was constantly trembling on tbe verge of insanity. Tbe witnesses agree tbat in tbe spring of tbat year, and up to tbe time when be left Magnolia and came to Madison to reside with bis son, be was worse than be bad ever been before. He bad eight children then in bis family, wbo were scantily supplied with bedding. But be traded bis bedding and gave a note for an old corn sheller and a fanning mill, nearly worthless. Some of tbe witnesses state tbat be came to Madison in May, or about tbe 1st of June. Tbe plaintiff himself testifies tbat be came three or four weeks before tbe mortgage was executed. This would have been about tbe first of June, which must be taken to have been about tbe time when be came. Kate Babcock, tbe wife of bis son, on whose evidence tbe plaintiff strongly relies, testifies tbat after arriving at Madison be seemed much depressed and melancholy — would sit and read from morning till night, if they would let him. She says this did not continue longer than five or six weeks. But assuming tbat be came there on tbe 1st of June, as tbe weight of evidence would warrant, if it lasted four weeks it would have continued till tbe execution of tbe mortgage. And upon any construction of thfe testimony it must have continued until within a short time of its execution. Tbe counsel for tbe plaintiff urged, with much ingenuity, tbat one of tbe strongest symptoms of tbe respondent’s insanity was bis disposition to talk constantly, and be relied on tbe absence of this at about tbe time tbe mortgage was executed, to show bis lucid interval. It undoubtedly appears tbat at certain stages of bis “ insane spells ” be was much inclined to talk. But this was not always. On tbe contrary, be sometimes *428°PP0S^e ex^remei aD-d was gloomy and silent Tbis change in the symptoms we believe is well established by the bistory of this disease, and would seem to be confirmed by common experience and observation. It is a law both of the body and of the mind, that conditions of intense excitement and activity are followed by corresponding conditions of depression. This should naturally be expected in insanity, and it is accordingly found there. It is true this condition would not so naturally attract attention as the one of activity. But it would be very unsafe to assume that the disease was not still present, merely because the symptoms of its active excitement had ceased. Though most of the witnesses dwell more strongly upon the demonstrative symptoms, yet they did not fail to notice the opposite. York testified that he sometimes seemed very dull, and that he could not get much out of him. Our conclusion that he was in this condition from the time he came to Madison until at or after the execution of the mortgage, is further corroborated by the testimony of Cook, one of his neighbors. He swears that he saw him in Madison about the 1st of July, that he seemed quite melancholy, shed tears, spoke of his family, but did not say much. York testifies that he saw him in August or September following, and it is evident from his conversation at that time that the other phase of his insanity was then present. Npon the whole, with this conceded cloud over the respondent’s intellect, both before and after the execution of the mortgage, we are unable to say that the evidence has so lifted the veil that we can look into the secret workings of his mind and say that it was not darkened at that moment.

Our conclusion derives some support from the testimony of the defendant himself. It seems to be conceded that he was sane at the time it was taken, and he says he has no recollection whatever of having executed this mortgage. It appears that a failure to remember what took place during his insanity, had been previously noticed by the witness Tuttle.

We think it also derives some support from the nature of the act itself. He was a man of limited means, having no *429'■property but tbis homestead. He bad quite a large family of children, some of them young. 'He mortgaged bis stead to secure the debt of a son who was of age, and carrying on business for himself. There is,' it is true, nothing extraordinary in this. It might well be explained by the promptings of paternal affection. Still, in view of the defendant’s circumstances, and the condition' of the rest of his family, it was imprudent, to say the least, as the result has shown. And in respect to the capacity of a lunatic to make a will, great stress is laid on the nature of its provisions, in determining whether or not it was made in a lucid interval. For the lunacy being once established, the, burden is on the party claiming through any act of the lunatic, to show that it was done in a lucid interval. In such cases, it is said, “ positive proof must be given of the disorder having been thrown off for the time, and there must be a complete interval of sanity applying to the particular act in question, for if there was a single word sounding in folly, that was conclusive against the presumption of a lucid interval, to all legal purposes.” 1 Boberts’ Law of Wills, case of F. E., 32; Stock on Law of Non Compotes Mentis, 51 (23 Am. Law Library).

For these reasons, without noticing more particularly the items of evidence relied on as indicating sanity, we think the judgment of the circuit court must be affirmed, with costs.