#### J. S. Sims, Committee, *vs.*J. McLure and others.

Contracts of ono of unsound mind, made before tbe appointment of a committee, *held*valid where no undue advantage was taken oí him.

BEFORE WARDLAW OH., AT SPARTANBURG-, JUNE, 1855.

Wardlaw Ch. By an inquisition, executed under the order of this Court, on January 26, 1858, and confirmed April the 12th, 1858, by a Chancellor, it was found that Thaddeus C. Sims “is of unsound mind, and has been so from his infancy, and incapable of the government of himself and estate.” The plaintiff was appointed committee of the said Thaddeus: and on July 28, 1853, he, as committee, filed this bill, to set aside sales of certain slaves made by said Thaddeus, and certain judgments confessed by him, before the inquisition.

The practice of instituting such a suit in the name of the committee only is sustained by high authority: Sto. Eq. PL Sec. 64; *Orteges*vs. *Messere,*7 Jno. C. R. 139. But where, as in this State, the maxim of the common law, that one cannot stultify himself, is not recognised, it is certainly better to follow the general rule of pleading, to make all parties to the suit who are materially interested in the object of it, and not to litigate and adjudge concerning the estate of any person, even a lunatic, who is not before the Court. The pleading of the plaintiff is liable to other and more serious objections. He seeks redress in one hill against many defendants, for various representations, in which the defendants have no community of interest or action. Worse still, he states no specific case against any one of the defendants, and endeavors by vague averments to implicate all. A brief summary of the bill is, that Thaddeus was regarded by his family and friends as of unsound mind, without adequate knowledge of the value of *287property, and liable to be overreached; that be was entitled by succession to seventeen negroes and several thousand dollars ; and that, on his coming of age in 1850, this property was put into his unrestricted possession by his guardian, J. J. Pratt, after a settlement with him ; that of this estate nothing remains in his hands except a tract of land worth eight hundred or one thousand dollars, three negroes, and some other chattels of inconsiderable value, subject to the lien of judgments against him to about the sum of sixteen hundred dollars; that the other negroes have passed into the hands o'f sundry persons for very inadequate consideration, paid in things of little value to him ; and that of these negroes, Peyton Hunter has two — Margaret and Taylor; William T. Wilkins has two —Irene and Margaret; Wm. Robbs has three — Mose, Jim and Trezevant; McLure and Wilson have Eliza ; and Wm. Savage has Prank ; that of the debts in judgment, a list of which is exhibited, some were contracted while Thaddeus was a minor, and many others were without any adequate consideration of any kind, under mere pretences, by which his imbecility was overreached; although some of them may have been for necessaries, and entitled to payment. And the prayer of the bill is that the defendants be required to make a full exhibit of their dealings with Thaddeus, with dates, items and proofs of fairness, and come to a full account with plaintiff, and in the meantime be enjoined ; and that the unjust contracts be set aside, and the property acquired under them be delivered to plaintiff, and that he be allowed to sell so much of it as is necessary, and pay the creditors whatever is fairly due. The bill further alleges that plaintiff applied to some of the creditors for statements of their claims against his ward, (of which there is no proof, except as to Hunter,) and that in the only case in which his request was complied with (Hunter’s) he is satisfied a portion of the claim is not allowable. All of these allegations are of a sweeping and indefinite character, and not pointed individually to persons or transactions. The grounds on which *288Courts of Equity inteferé to set aside the sales, or other solemn acts of persons of unsound or weak minds, is, that fraud has been practised on them. Sto. Eq. § 22T. A plaintiff seeking the aid of the Court in such case should state in his bill facts and circumstances impeaching each particular contract sought to be avoided.

It may be that all contracts of persons *non compotis*mentis, made after the time at which the inquisition finds the unsoundness to begin, are *prima facie*void; that is voidable ; but the inquisition is not conclusive evidence of the fact of unsoundness, and may be gainsayed by a party in interest without formal traverse. Indeed, a fair contract, made with a lunatic by a third person without notice of the lunacy, will not be disturbed. *Baxter*vs. *Bari of*Portsmouth, 2 B. & Cr. *170; Niel*vs. *Morley,*9 Yes. 478; *Beavan*vs. *McDonnell,*9 Exch. 309 ; *Ballard*vs. *McKenna,*4 Rich. Eq. 358; *Keys*vs. *No’rris,*6 Rich. Eq. 388.

The bill in this ease does not allege that the defendants, at the time of their several contracts, had any notice of the unsoundness of mind of Thaddeus Sims, and the defendants not only deny notice of this fact, but altogether dispute the unsoundness. I shall not repeat in detail the evidence given as to unsoundness, but a brief summary of it is, that Thaddeus learned little or nothing-at school; that .he could not count well, and that he seemed to know little of the denominations of bank bills. On the other hand, that upon attaining full age, his guardian, a most prudent and respectable man, settled with him, and delivered to him his property in unrestricted possession; and that afterwards, until the inquisition, he managed his own affairs, having dealings, as one competent, with his relations and other persons; that he contracted marriage with the daughter of a respectable family — that he ploughed well — that he asked high prices for property he wished to sell — that he was thankful to a witness for keeping him out of a fight — that he sometimes gave sound opinions as *289to the the value of property when his advice was sought — that he recognised his debts, and made arrangements for their payment — that he was able to make short calculations in his head —that he named and knew by name eighteen game chickens raised for him by a neighbor, and that he played whist well, (although I believe cards were invented for the amusement of a crazy French king.) It seems impossible to conclude, on this evidence, that his unsoundness was of that manifest character, as necessarily to furnish notice of his incompetency to contract to those undertaking to deal with him. I am of opinion that he must be bound by his contracts, where no undue advantage was taken of him, before his friends chose to have a committee appointed for him by the Court. *Dodds*vs. *Wilson,*1 Tread. 448. His contracts impeached .are the sales of certain negroes and certain debts which have passed into judgments; and they may be considered separately. Of the seventeen slaves alleged to belong to him on maturity, five were accidentally burned to death, three remain in his possession, and three were sold to his father-in-law Robbs, concerning which a satisfactory adjustment had been made. The title-of Vm. Savage to another must be protected by the plea of purchase for valuable consideration without notice, and by the satisfactory proof of the fairness of the original sale of this slave to R. S. Sims. In like manner the purchase of one by McLure and Wilson, of two by Wilkins, and of two by Hunter, seem to have been made *bona fide*for full prices, and must stand. Some of the witnesses expressed the opinion that the price paid by Hunter was moderate, but the inadequacy was not such as of itself to furnish evidence of fraud, and there was no corroborative evidence.

So, too, of the debts contracted by Thaddeus; while there was evidence of extravagance and improvidence on the part of himself and wife, there is no proof of overreaching on the part of the creditors. Some of the debts were contracted with the assent of his friends, and others are confessedly fair. In the *290state of the pleadings and proofs there is no satisfactory ground for the interference of the Court as to these debts.

The evidence, however, makes a pretty strong case as to the satisfaction of the judgment to Wilkins, and of the judgment and mortgage to Hunter ; and it is proper that further inquiry be made on these points.

It is ordered and decreed, That it be referred to the Commissioner to inquire and report how much, if anything, remains due upon the judgment and mortgage of Hunter and the judgment of Wilkins against Thaddeus Sims; and that, in the meantime, Hunter and Wilkins be enjoined from enforcing the collection of these debts.

It is further ordered, that in all other particular’s the bill be dismissed.

The complainant appealed on the ground :

1. Because Thaddeus Sims was an idiot, and none of his acts were binding upon him.

2. Because the debt to McLure and Wilson was contracted when Thaddeus was a minor and idiot, and not for necessaries, or by the consent of his guardian ; ■ and a large portion of the judgment was for interest on an open account and illegal.

3. Because the decree was against law and evidence.

Bolo, for appellant.

*Bawicins,*contra.

Pee, CüRIAM.

This Court sees no sufficient reason for differing from the Chancellor. It is, therefore, ordered, that his decree be affirmed, and the appeal dismissed.

JohnstoN, DuheiN, Dakgan and Waedlaw, CC., concurring.

*Appeal dismissed.*