#### *T.*Y. *Neely*v. *Joel L. Anderson.*

Columbia,

Novr, 1848.

The general rule in this Court, as to parties, is that all persons interested in the subject matter of the litigation, should be made parties, either complainant or defendant.

The proper way to take advantage of the want of proper parties to a bill, is by demurrer, if the omission appears on the face of the pleadings, and by a plea, if it does not so appear.

It is the duty of the defendant, who objects to the complainant’s bill for the want of proper parties, to inform him, by pleading, who are the proper parties; or in law phrase, *“ to*give him a better writ.” But this rule is within the discretion of the Court. And when it is perceived that the parties, who are directly interested, are not before the Court; that they will not be bound by its decrees, but be entitled to another hearing in a suit to be instituted by them: *263when it also appears that the persons omitted are the only real parties in interest, and that they are infants, and on that account more especially entitled to the protection of the Court, it will pause and suspend its judgment until proper parties are before it.

*Before*Caldwell, Ch. *at*Laurens, *June*Sittings, 1848.

The bill in this case was filed by the plaintiff against the defendant to set aside two deeds, made by the plaintiff, conveying all his property to the defendant, on various grounds of incapacity on plaintiff’s part to execute them; of inadequacy of price, of fraud, undue influence, unfairness, &c. on the part of the defendant; and also for such matters of account as may exist between the parties; and if the second deed of conveyance, for the tract of land, be not set aside as fraudulent and void, then the defendant to account for and pay over to the plaintiff the sum of twelve hundred dollars, the consideration therein stated ; and that he may pay over to the plaintiff one-half of the amount claimed for the building of the bridges (as alleged.) and that defendant may be restrained, by the order and injunction of the Court, from further intermedling or interfering with the property embraced in the first mentioned deed, and that plaintiff maybe protected in the possession, and enjoyment thereof, until the further order of the Court, &c. The answer denies all the charges of incapacity, undue influence, unfairness, fraud, &c. and details minutely the circumstances under which the plaintiff made-the deeds to the defendant, and how he has acted towards the plaintiff; the answer alleges that the defendant has paid out large sums of money for the plaintiff, and that he is greatly indebted- to the defendant, who sets forth the same in exhibit A. filed with his answer.

After a very full hearing of the case, his Honor decreed as follows:

Caldwell, Oh. In this case there was a great number of witnesses examined, and it is worthy of remark that, although they differed in their testimony, there was no effort to impeach the character of any of them : the great confidence that is reposed in the sincerity, impartiality and truth of the witnesses, increases the difficulty of deciding some of the questions that arise in the case. The plaintiff, T. Y. Neely, was the brother of the wife of the defendant, Dr. Joel Anderson ; he was possessed of a valuable plantation and thirty three negroes; he was a bachelor, residing on his plantation, and within a short distance of his brother-in-law: he had for years been the victim of intemperance, not by occasional but by habitual indulgence; his body and mind had been affected by it, but *the extent*of the injury was the principal point of controversy. The defendant and his wife .entertain^ *264ed serious apprehensions that the plaintiff intended to marly a woman in the neighborhood whom they thought unfit and unworthy to become his wife, and it was alleged they had fears that under improper influences he would dispose of his property. The condition of the plaintiff’s nervous system, and his defect of vision arising from his habits, independently Of their influence upon his mind, rendered it necessary that some one should attend to his business, which was becoming somewhat embarrassed ; the defendant acted as his agent. The plaintiff’s health had not been good fora considerable time before the execution of the deeds, and the defendant was his physician.

The fwo deeds were executed by the plaintiff on the same day, 6th of May, 1847, to the defendant: the one (exhibit A.) conveyed fwo tracts of laud, the first containing between one thousand and eleven hundred acres, lying in the fork of Saluda and Reedy Rivers, in Laurens District, and the second containing two hundred and fifty-five acres, west of Saluda River, in Abbeville District: and also conveyed thirty two negroes and all his plantation tools and stock of every description, and his interest in the charter of a bridge over Reedy and Saluda Rivers, (granted to plaintiff, George Anderson and Robert Cunningham) in trust to pay out of the income of said property, as early as practicable, all his just debts, and to permit him to reside at the homestead place, where he then lived, during his life ; but the said Anderson was to superintend and manage the plantation and slaves, and all the other property conveyed, to the best advantage, and to pay over to him, annually, the net income of the same during his life, and, at his death, to continue his supervision and management of said estate, for the sole and separate use of plaintiff’s sister, Rebecca, during her life, and at her death, to divide the estate and the increase of the slaves, if any, amongst such children as the said Rebecca might leave surviving her, share and share alike : the children of any deceased child to take the share to which their parent would be entitled if living: but should plaintiff survive his sister, then, and in that event, the said trustee was to divide said property equally amongst her surviving children at plaintiff’s death, including the children of any deceased child who was to take the share which the deceased parent would take if living. The other deed (B.) was a conveyance of one hundred and seventy acres, lying in Laurens District, in consideration of twelve hundred dollars, to the defendant, in fee simple, in the usual form and with a general warranty. There was no money paid, or note given, when these deeds were executed by the plaintiff. The first question is, was the plaintiff insane on the 6th of May, 1847, when he executed *the two*deeds of which the exhibits A. & B. filed *265with the bill are copies? Upon this point there was the widest difference-of opinion among the witnesses: some them thought that he had been insane before that time, and that he continued in the same condition for some considerable period afterwards : other witnesses, and particularly the subscribing witnesses to the deeds, entertained and expressed a very different opinion of his capacity, and thought that he was competent to make the contract.

These discrepancies of opinion, no doubt, arose from the different powers of observation, and from the different opportunities they had of seeing and conversing with the plaintiff. There are some conclusions from the evidence that I think are irresistible. The testimony of several witnesses concurs in establishing the fact, that the plaintiff *was insane at particular periods ;*but there is a material difference between occasional and continued insanity — it is much easier to establish the former than the latter : indeed in cases of partial insanity, it is often extremely difficult to detect the exact condition of the mind; in a general conversation, or in the common occurrences of life, one of this particular class often displays more than ordinary ability, but when the subject upon which he is deranged is touched, his mind seems to lose all its reasoning powers, and he becomes, in a moment, a raving mad-man. The proof does not bring the plaintiff within that class, and we must therefore enquire into the *indicia*of a general insanity. The sources from which some of the witnesses drew their conclusions, were from the appearance of the plaintiff, his conversations, and sometimes from his conduct: to take any of these things separately, (except on *particular*occasions, *when he ivas*insane, *beyond all*doubt,) might be insufficient to convince us of the fact, but to add them together would produce a much stronger belief of his insanity, were it npt that other witnesses, from the very same sources, but at different times, deduced the contrary conclusion, and some of them even made contracts with him. One of the most intelligent witnesses, who attended him as a physician, and was well qualified to judge of the state of the plaintiff’s mind and body, and who, in addition to his ability and experience, had the *best*opportunities, except the defendant, of forming a correct opinion, thought that Neely was *insane at the time he executed the deeds,*that he had been so sometime before, and continued to be so sometime after their execution.

There are several witnesses who not only corroborate the opinion of Dr. Richardson, by concurring in it, but by what Í consider much stronger, the statement of facts that are calculated to raise a strong presumption of some subsisting unsoundness of mind during the period. About one fact I have no doubt, that the plaintiff was occasionally insane; his con*266duct 'in North Carolina, the incoherent, inconsistent and irrational acts he frequently displayed at his return home, and almost the whole course of his conduct, on his trip to Columbia, are inexplicable upon any other supposition. On the day he made the deeds he appeared to the witnesses to be ¿rational; he conversed intelligibly with the gentleman who drew them, and behaved with decorum ; there was nothing indicating insanity on this occasion. It was argued, that as there was no suspicion of his being insane by the subscribing witnesses, that therefore there was no eifort made to detect it, — this may be possible, but where there is a general insanity, a few minutes of conversation will usually devel-ope it. The proof is sufficient to establish the plaintiff’s insanity, before and after the execution of the deeds, but it is difficult to say, except by relying on a presumption drawn from circumstances, that he was insane on the day he made the deeds. It may have been the case, that his mind, on that occasion, notwithstanding it had been greatly impaired, by his body having been wasted and worn down for years by habitual drunkenness, may have resumed, to a considerable extent, its functions, and the lamp of reason, although sinking to extinction, may have, for a short time, relumed with a brighter and a steadier light. We well know that there are lucid intervals in lunacy, and this species of insanity (which is becoming almost an epidemic.) may have its paroxysms ; this may, in some degree, account for the difference of opinion between witnesses of such intelligence and respectability.

If the plaintiff had committed a crime during this period, it would have been difficult for a jury to have found him guilty, qn the proof of the general condition of his mind, unless the eyidence had been clear and conclusive of his having had the use of his reason when he perpetrated the offence. From a comparison of theproof, and from the general weight of the evidence, there is a reasonable doubt raised as to the general soundness of the plaintiff’s mind for a period of some months, both before and after 6th of May, 1847. But the case does not depend upon the plaintiff’s being insane at the making of the contract: the next question, therefore, becomes one of importance, whether he was in such a condition of bodily and mental weakness, connected with the circumstances under which the contract was made, that entitles him to a rescisión of it ? The defendant occupied peculiar relations to the plaintiff, and such as were calculated to create great affection and confidence; he was his brother-in-law, his agent, and his physician; these would naturally give the defendant influence over him, if he had been of strong mind, but over one of such enfeebled body and imbecile mind, there can be no doubt the influence would be irresistible. Neely’s necessities almost compelled him to have an agent; he was not only un*267able but unfit to attend to business, and no one'frour their neighborhood and connexion could have been selected suitable as the defendant. The contracts between agents,, and principals are always scrutinized with jealousy, even when there is no doubt as to the legal capacity in the principal; but when there is such a mass of evidence, (as in this case) of his imbecility of body and mind, and of his inability and unfitness to attend to business, the defendant must shew that the plaintiff not only perfectly understood the terms the contract, and had capacity to appreciate them, but that he entered into it freely aiid fairly, that it was rational, and the consideration was adequate.

Dent v. Ben-^ond.- ’ ‘ eps'’

. . .. ~ q^charicsh ton, Jan. i84s" Rutherford v. 43^es-

But the case does not stop here; the defendant was a physician, and at the time of making the contract, was the cal adviser of the plaintiff, who made it at the defendant’s house; no one probably knew the exaet condition of his mind; body, habits and peculiar influences that would operate upon-him, as well as the defendant.

The witnesses testify to very strong declarations made by' the defendant as to the plaintiff’s incapacity; these declarations are entitled to great weight, and cauuot well be resisted; they have been corroborated both by the course the defendant has adopted towards the plaintiff, and by the testimony of several intelligent witnesses, who concur with the defendant’s declarations in the opinion, that Neely was incapable of making a contract; if his declarations were taken! to their full extent, they would establish *the plaintiff’s insane*ity, but in the most mitigated view, they go to shew that he* thought Neely incapable of making a contract of marriage; if that opinion was sincere and correct, of course he was. unable to make a contract of the magnitude of this, disposiug: of’his whole estate. From whom did the proposal to make this contract, proceed ? Can anyone believe that it originated with Neely? The plaintiff, as far as we can judge from the. evidence, had no pre-existing or adequate motive to make if until after the defendant had expressed his fears that the plaintiff might be induced to marry a worthless woman; the defendant had *3.*motive, which it is very easy to perceive, to prevent the marriage, and to secure the property from Neely’s1 improvidence, and from the improper influences of others.The defendant’s declarations gave color to his conduct thiough the whole transaction. When one undertakes to make a contract with another, of doubful capacity, the burden lies! upon him who sets up such a contract, to shew clearly that it was fair and reasonable, and that there was an adequate'¿ consideration ; on these points the defendant’s proof has failed, and when counterbalanced with the plaintiff’s evidence on the question of capacity, the case comes within the well established rules of equitable relief. The gross inadequacy of *268consideration connected with the plaintiff’s imbecility, will be sufficient to set aside the contract, but when these things are considered in conjunction with the confidential relations of agent and physician, the conclusion is irresistible.

It is therefore ordered and decreed that these contracts between the parties, and the deeds described in the pleadings, are null and void, and that they be set aside; that the said deeds be delivered to and be cancelled by the Commissioner. It is further ordered and decreed, that the matters of account embraced in the pleadings, between the plaintiff and defendant, be referred to the Commissioner to ascertain and report the same.

The defendant appealed from so much of the decree as sets aside the deeds, and moved to reverse the same in. that respect, on the following grounds:

1st. Because there was no evidence, whatever, to show that the complainant was insane at the execution of the deeds, and the proof on the part of the defendant was conclusive that he was in his proper mind.

2d. Because his Honor is mistaken in supposing that the fact of the complainant’s “ *insanity*at particular periods,” was established by the testimony. The proof was, that he indulged in fits of drukenness, and had occasionally stupified himself in such a way as to be incapable of transacting business.

3d. Because if it had been clearly proved that he was occasionally insane, still this would not affect the deeds made in his proper mind, or leave the impression that they were executed in a state of derangement.

4th. Because his Honor has erred in attaching any importance to the mere opinion of Dr. Richardson, as to complainant’s insanity, at the time of executing the deeds, when it was in proof that the doctor neither saw him at the execution of the deeds, nor on the day they were executed.

5th. Because his Honor is mistaken in stating that the proof is sufficient to establish the plaintiff’s insanity before and after the execution of the deeds.

6th. Because his Honor has misapprehended the declarations of the defendant in supposing that they go to show that Neely was incapable of making, at any time, a contract of marriage. His apprehensions were, that in *a jit of drunken*ness, he might be induced to contract a marriage which would be void.

7th. His Honor is also mistaken in supposing that Neely had no adequate motive to make the contract. Dr. Anderson was to take charge of his property, manage the same, and pay over to him the nett proceeds of it during his life. This was certainly some consideration, and might be, to a man in Neely’s situation, without wife or child, or the prospect of *269having either, an adequate consideration for securing the property in remainder to an only sister, and her children.

8th. Because, his Honor has erred m decreeing that the burden of proof lies on the defendant, to show that the contract was full, reasonable, and founded on an adequate consideration, when the rules of law require that the burden of proof shall be on the party attempting to set aside an agreement, to show that it was entered into unfairly, and without consideration.

9th. That the case was not brought by the testimony within the rules of equitable relief.

10th. Because both deeds were executed' fairly and *bona fide,*when the complainant was competent, and upon not only a good, but a valuable and adequate consideration.

11th. Because the decree is in all other respects contrary to law, and the well established principles of equity jurisprudence.

Sullivan and Perry, for motion.

Irby and Young, contra.

Dargan, Ch.

delivered the opinion of the Court.

On the circuit trial, this case underwent a very careful and patient investigation by the Chancellor who presided. The question upon which the present disposition of the case by this Court will turn, was not considered by him ; not having been made in the pleadings nor in the argument on the circuit. Nor is it made in any of the grounds of appeal upon which the case has been brought before this Court. It is with reluctance, therefore, that this Court feels itself compelled to consideran objection, which has not been presented by any of those forms of pleading and practice by which issues of fact and law are brought under the cognisance of Courts of justice, and which was alluded to only in the latter stage of the argument on the appeal, on a suggestion thrown out incidentally by one of the members of this Court. As the judgment now about to be rendered will be upon a question of pleading, it is my purpose to avoid any expression of opinion upon the merits of the case, or upon any of the various grounds of appeal assumed against the Chancellor’s decree.

By one of the deeds, the validity of which is involved in these proceedings, the complainant conveyed to the defendant his plantation contáimng between one thousand and eleven hundred acres, lying in the fork of Saluda and Reedy Rivers, in Laurens district, and thirty two slaves, and all his plantation tools and stock of every description, and his interest in the charter of a bridge over Saluda and Reedy Rivers; in trust, to pay out of the income of said property, all his just debts, and to permit him (the complainant) to reside at the homestead place, where he then lived, during his life; *270but the said Anderson was to manage and superintend the said plantation and slaves, and all the other property conveyed, to the best advantage, and to pay over to him annually, the nett income of the same during his life, and after his death to continue his supervision and management of the said estate for the sole and. separate use of the complainant’s sister Rebecca (defendant’s wife) during her life, *and at her death, to divide the estate and increase of the slaves, if any, among such children as the said Rebecca might leave surviving her,*share and share alike ; the children of any deceased child to take the share to which their deceased parent would be entitled if living; but should the complainant survive his sister, then and in that event, the said trustee was to divide the said property equally among her surviving children at the complainant’s death, including the children of any deceased child, who were to take the share which'the deceased parent would take if living. These are the provisions of the deed of trust.

The bill was filed by the said T. Y. Neely against the trustee, Joel Anderson, to set aside this deed, and also another deed which he executed to the said Anderson, conveying to him, absolutely, another and a smaller tract of land, for the consideration expressed of $1200, on the ground that the said complainant, at the time of their execution, was not of sound and disposing mind, and that undue influence had been exercised over him.

The bill was filed on the 29th July, 1847, while the defendant’s wife was living, but she was not made a party. She was dead at the time of the trial, and on her death, according to the construction of the deed, which this Court has adopted, the rights of her children whom she left surviving her, became vested, and certain, by way of remainder, to take efFect in possession and enjoyment at the death of the complainant. On that event, according to the provisions of the deed, the trust estate was to be equally divided among the children whom the complainant’s sister should leave surviving her, with the right of representation on the part of the children of those who should not be living. This is the clear and obvious construction of the instrument.

At the time of the trial, then, the children of Mrs. Anderson had a vested estate in remainder as tenants in common, the enjoyment of which was only postponed to the period at which the precedent life estate should expire. And not being parties to the bill, it is very clear that any decree which this Court might make in the present state of the pleadings, would be nugatory as to them.

The rule in this Court as to parties, is, that all persons interested in the subject matter of the litigation, should be made parties, either complainant or defendant. The reason of the rule is twofold. With all parties in interest before it, *271the Court can do more perfect and complete justice, and adjudicate their rights definitively and conclusively, and thus, put an end to all future controversy. And secondly, it is but simple justice, that the party against whom the Court enforces its decrees, should be protected in the performance of what he is required to do, which protection cannot be afforded against a person who is not a party to the cause. The rule being a general one, admits of a variety of exceptions. It was adopted as one convenient and conducive to the due and proper administration of justice, and would not be regarded as inflexible, where its application would-be absurd, impracticable, or lead to inconvenient delays. It is unnecessary to discuss the circumstances under which the rule would be relaxed, as the case before us does not constitute one of its exceptions.

16 Yes. 325.

The proper way to take advantage of the want of proper parties to a bill, as Lord Eldon observed, in *Cockburn*v. Thompson, is by demurrer, if the omision appears on the face of the pleadings; and by a plea, if it does not so appear. It is the duty of the defendant who objects to the complainant’s bill for the want of proper parties, to inform him by pleading, who are the proper parties; or in law phrase, “to give him a better writ.”

But this rule is within the discretion of the Court. And when it is perceived, as in this case, that the parties who are directly interested, are not before the Court, that they will not be bound by its decrees, but be entitled to another -hearing in a suit to be instituted by them ; when it also appears that the persons omitted are, with the exception of the defendant as a creditor, the only real parties in interest, and that they are infants, and on that account more especially entitled to the protection of this Court, it will pause and suspend its judgment until all proper parties are before it. It is perhaps a duty incumbent on the Court to pursue this course lest the rights of some of the omitted parties might be prejudiced by its premature action. It is necessary to a full adjudication of the rights of all the persons interested in the trust deed, that the decree be set aside, and the case be remanded to the circuit, with leave to the complainant to amend his bill by making the proper parties.

In regard to that part of the bill which seeks to set aside the deed of the complainant for the smaller tract of land, no other parties are necessary. By that deed, no trust is created, and no other persons are interested than the defendant. And the case might now have been retained, and a decree rendered as respects this deed. But this Court is disposed to avoid any expression of opinion upon the merits of this con-trovery at the present stage of the proceedings. As that portion of the case which involves much the larger interest, is *272necessary to be remanded, it is thought to be most conducive to justice, that the whole case should go back to the Circuit Court, divested of the influence which any expression of opinion *here*might exert upon the result of the trial.

It is therefore ordered and decreed that the circuit decree be set aside, and the case be remanded to the circuit for a new trial, with leave to the complainant to amend his bill by making the children of Mrs. Rebecca Anderson, parties defendants.

Johnston, Ch. and Dunkin, Ch. concurred.

*Decree set aside and case remanded.*